Ambivalent Enforcement: International Humanitarian Law and Human Rights Tribunals

Abstract

The question of how to best enforce the decisions of international tribunals looms large in international law. Specifically, the sub-field of international law known as international humanitarian law (IHL), or the law of war, suffers from a lack of enforcement options as its Achilles heel. No tribunal exists with specific subject matter jurisdiction to adjudicate during situations that may give rise to state violations of international humanitarian law. Meanwhile, human rights tribunals have the subject matter jurisdiction to resolve human rights disputes, and there are significant areas of substantive overlap between humanitarian law and human rights law. Focusing on the interplay between international human rights law and international humanitarian law, this Article examines whether, based on this substantive overlap, human rights tribunals offer an appropriate forum for the enforcement of IHL. This article makes two important contributions: first, it offers a normative framing of how to utilize the abstract legal standard of lex specialis when IHL and HRL may simultaneously apply; second, the Article assesses the impact of employing IHL at human rights tribunals, concluding that this practice, even when the resulting decisions are not binding, may result in increased enforcement of IHL.

Keywords: International Human Rights, International Humanitarian Law, tribunals, IACHR, Inter-American System of Human Rights, Inter-American Court of Human Rights, Enforcement, lex specialis