Trials and Tribulations: Co-Applicability of IHL and Human Rights in an Age of Adjudication
Ziv Bohrer, J. Dill, & Helen Duffy, Law Applicable to Armed Conflict (Max Planck Trialogues (Cambridge University Press, 2020).
73 Pages Posted: 16 Jul 2020
Date Written: 2020
This chapter considers the applicability of international humanitarian law (IHL) and of international human rights law (IHRL) in turn, before exploring their interplay in theory and, most importantly, in practice. It begins by recognising the political, institutional and legal landscape within which the debate on applicability in this book arises and why it matters. These include notoriously selective state practice in cherry picking applicable law to the detriment of the protection of the person, the stark procedural imbalance between IHL and IHRL as regards independent judicial oversight. If, as Richard Baxter noted in the 1970s, ‘the first line of defense against international humanitarian law is to deny that it applies at all,’ a further line of defence against accountability under IHL is to deny and limit the applicability of IHRL. The chapter considers developments in the material, personal and geographic applicability of IHL and IHRL, noting growing overlap. It highlights the role that diverse forms of international adjudication have played in shaping the applicability of each area of law, contributing to the almost universal recognition today of (co)-applicability, and gradually (and still falteringly) probing what this means in concrete situations. The chapter sets out a law and practice-based framework for understanding interplay, which is norm-specific and deeply contextual, explored through the prism of particular issues e.g. lawful detention, targeted killings, cyber operations and investigations in armed conflict. It concludes with the need to embrace the inherent complexity of giving effect to law in armed conflict. If it ‘leans in’ to this complexity, international adjudication has a crucial role to play, alongside other processes, in grappling with the challenges of understanding, clarifying and as appropriate developing the law where it is needed most.
Keywords: International Humanitarian Law, International Human Rights Law, Applicability, Armed Conflicts, International Adjudication
JEL Classification: K33
Suggested Citation: Suggested Citation