Investigations in Armed Conflict: Understanding the Interaction between International Humanitarian Law and Human Rights Law
P. De Hert, S. Smis, M. Holvoet (eds.), Convergences and Divergences Between International Human Rights, International Humanitarian and International Criminal Law, Intersentia (2018)
25 Pages Posted: 1 Aug 2018
Date Written: 2018
The present contribution examines the interaction between international humanitarian law (IHL) and human rights law (HRL) in relation to the duty to investigate in armed conflict. The analysis looks into how IHL and HRL respectively regulate this duty, showing that whereas the latter prescribes in detail the standards an investigation must follow in order to be deemed effective, the former does not. Accordingly, the research question is whether and how HRL may complement IHL and fill what is here considered a gap in the law.
In order to determine how HRL may complement IHL, the study looks at how the two bodies of law interact both as legal regimes and at the level of specific norms. It accordingly delineates a theoretical framework based on a perspective of complementarity between the two, operationalised at the micro level through the principle of systemic integration.
With specific regard to the obligation to investigate in armed conflict, the analysis considers two scenarios: concurrent applicability of IHL and HRL, and exclusive applicability of IHL. It shows that the standards of effectiveness may be applied to war crimes investigations in both scenarios. This is possible by means of the ‘all reasonable steps’/‘all feasible measures’ test, an interpretive trend that is emerging in human rights jurisprudence.
Clarifying the impact of HRL on war crimes investigations serves the purpose of shedding light on how States are expected to fulfil their relevant legal obligations. This is important at the normative level, for it brings more clarity within international law. At the practical level, it may be of assistance to those who carry out investigations in armed conflict as well as to those who scrutinise the conduct of investigators.
Keywords: Obligation To Investigate; International Humanitarian Law; IHL; Human Rights Law; HRL; Armed Conflict; Complementarity; Systemic Integration; Lex Specialis
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