Book contents
- Frontmatter
- Contents
- Acknowledgments
- Table of cases
- Table of Legal Instruments
- List of Abbreviations
- Introduction
- Part I Human rights in armed conflict: history of an idea
- Part II Human rights and humanitarian law: theory
- Part III Human rights and humanitarian law: challenges and commonalities
- 8 The right to life: the limits of human rights in armed conflict?
- 9 The extra-territorial application of human rights: functional universality
- 10 War as emergency: derogation
- 11 Human rights and humanitarian obligations
- 12 Operationalizing human rights in armed conflict
- Part IV The dynamics of war and law
- Part V Enforcement: practice and potential
- Conclusion
- Bibliography
- Index
- References
8 - The right to life: the limits of human rights in armed conflict?
Published online by Cambridge University Press: 05 March 2015
Book contents
- Frontmatter
- Contents
- Acknowledgments
- Table of cases
- Table of Legal Instruments
- List of Abbreviations
- Introduction
- Part I Human rights in armed conflict: history of an idea
- Part II Human rights and humanitarian law: theory
- Part III Human rights and humanitarian law: challenges and commonalities
- 8 The right to life: the limits of human rights in armed conflict?
- 9 The extra-territorial application of human rights: functional universality
- 10 War as emergency: derogation
- 11 Human rights and humanitarian obligations
- 12 Operationalizing human rights in armed conflict
- Part IV The dynamics of war and law
- Part V Enforcement: practice and potential
- Conclusion
- Bibliography
- Index
- References
Summary
Paradigmatic differences: war-fighting and law enforcement
Like many others, the International Committee of the Red Cross (ICRC) sees “the greatest differences” between international humanitarian law and international human rights law in the right to life. In the eyes of many commentators, the way in which human rights and humanitarian law think about the use of deadly force – the central element of armed conflicts – reflects paradigmatic differences so profound that there can be no complementarity in this matter. Humanitarian law can be seen as a permissive regime which grants positive authorization to use force in order to achieve military aims. In a seemingly paradox way, it facilitates and, at the same time, limits killing and destruction, whereas international human rights law is restrictive and accepts lethal force only as last resort. For humanitarian law, the use of force is an integral part of the law, while killing is antithetical to the very idea of human rights. In light of these considerations it has been suggested that the two regimes need to be kept “distinct as far as possible” – but how far is as far as possible? Are the differences between human rights and humanitarian law on this question so fundamental that (at least) this very core of humanitarian law must be preserved uninfluenced by human rights law even if their application might be accepted in other areas of armed conflict? Or is the difference merely a gradual one, and a complementary application of human rights and humanitarian law is possible? There is profound disagreement on this question, compounded by the fact that, somewhat surprisingly and despite the importance of this matter, the links between the human right to life and humanitarian law have only rather recently been subjected to a more thorough analysis beyond blanket statements of their incompatibility.
- Type
- Chapter
- Information
- Human Rights in Armed ConflictLaw, Practice, Policy, pp. 131 - 143Publisher: Cambridge University PressPrint publication year: 2015
References
, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report to the 31st International Conference of the Red Cross and Red Crescent (2011), pp. 18–20
, “The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications” (2010) 13 Yearbook of International Humanitarian Law219 and 223Google Scholar
, “The Use of Force in Occupied Territories: The Applicable Legal Framework” in Appendix to the Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory (Geneva: International Committee of the Red Cross, 2012), p. 144Google Scholar
, “The Right to Life: Legal and Political Foundations” in , and (eds.), The Right to Life (Leiden: Nijhoff, 2010), p. 15Google Scholar
, The Impact of Human Rights Law on Armed Forces (Cambridge: Cambridge University Press, 2006), pp. 137–47Google Scholar
, “The Right to Life in International Humanitarian Law and Human Rights Law” in and (eds.), International Humanitarian Law and Human Rights Law: Towards a Merger in International Law (Leiden: Nijhoff, 2008), pp. 331–53Google Scholar
, “Rights at the Frontier: Protection of the Individual in Time of War” in (ed.), Law at the Centre: The Institute of Advanced Legal Studies at Fifty (Dordrecht: Kluwer, 1999), p. 287Google Scholar
and , The Law of International Human Rights Protection (Oxford: Oxford University Press, 2009), p. 273Google Scholar
, “Integrity of the Person” in , and (eds.), International Human Rights Law (Oxford: Oxford University Press, 2010), p. 221Google Scholar
, “Le recours á la force par la police” in , and (eds.), The Right to Life (Leiden: Nijhoff, 2010), pp. 41–66CrossRefGoogle Scholar
, “The Relationship between the Human Rights Regime and the Law of Armed Conflict” (1971) 1 Israel Yearbook of Human Rights191Google Scholar
, and (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Nijhoff, 1987), para. 4789
, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn., Cambridge: Cambridge University Press, 2010), pp. 27–29CrossRefGoogle Scholar
, “Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflicts” (2010) 1(1) International Humanitarian Legal Studies76Google Scholar
, “Nature of Obligations” in , and (eds.), International Human Rights Law (Oxford: Oxford University Press, 2010), p. 142Google Scholar
, “Assessing Proportionality: Moral Complexity and Legal Rules” (2005) 8 Yearbook of International Humanitarian Law36CrossRefGoogle Scholar
Ergi v. Turkey, European Court of Human Rights, Appl. No. 23818/94, Judgment of 28 July 1998, para. 79
, “The Principle of Proportionality” in (ed.), The Legitimate Use of Military Force: The Just War Tradition and the Customary Law of Armed Conflict (Aldershot: Ashgate, 2008), p. 209Google Scholar
and , “Asymmetrical War and the Notion of Armed Conflict: A Tentative Conceptualization” (2009) 91(873) International Review of the Red Cross120CrossRefGoogle Scholar
and , “Proportionality in the European Convention on Human Rights” in and (eds.), Research Handbook on Human Rights and Humanitarian Law (Cheltenham: Edward Elgar, 2013), pp. 125–45CrossRefGoogle Scholar
, “Norm Conflicts, International Humanitarian Law and Human Rights Law” in (ed.), International Humanitarian and International Human Rights Law (Oxford: Oxford University Press, 2011), p. 121Google Scholar
in , International Law (7th edn., 1952), p. 202
, War, Aggression and Self-Defence (5th edn., Cambridge: Cambridge University Press, 2011), p. 5CrossRefGoogle Scholar
Isayeva v. Russia, European Court of Human Rights, Appl. No. 57950/00, Judgment of 24 February 2005, para. 191
, “Bolstering the Protection of Civilians in Armed Conflict” in (ed.), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012), p. 512Google Scholar
, “Human Rights and International Humanitarian Law” (2010) 21(1) European Journal of International Law20CrossRefGoogle Scholar
, International Humanitarian Law: Theory, Practice, Context (The Hague: Hague Academy of International Law, 2011), p. 76CrossRefGoogle Scholar
, “Counter-Insurgency, Human Rights, and the Law of Armed Conflict” (2009) 17(1) Human Rights Brief21, available at (last accessed 15 April 2014)Google Scholar
, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum – Mission to Sri Lanka, UN Doc. E/CN.4/2006/53/Add.5 (27 March 2006), para. 29
, “The Moral Imperative: Toward a Human-Rights Based Law of War” (2005) 46(1) Harvard International Law Journal254Google Scholar
, “The Power to Kill or Capture Enemy Combatants” (2013) 24(3) European Journal of International Law819CrossRefGoogle Scholar
, The Capture-Kill Debate: Lost Legislative History or Revisionist History?, Cornell Legal Studies Research Paper (8 March 2013), available at (last accessed 15 April 2014)
and , “The Relationship between International Humanitarian Law and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-international Armed Conflicts” (2008) 90(871) International Review of the Red Cross613–16CrossRefGoogle Scholar
, “The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?” (2007) 88(864) International Review of the Red Cross904Google Scholar
, “Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict” (2001) 64 Sasketchewan Law Review395Google Scholar
, “Targeted Killing of Suspected Terrorists: Extra-Judicial Execution or Legitimate Means of Defence?” (2005) 16(2) European Journal of International Law201–4CrossRefGoogle Scholar
, Targeted Killing in International Law (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar
, “Der Rechtsstaat und sein Henker: Gezieltes Töten als Mittel der Terrorbekämpfung (2012) 60 Jahrbuch des Öffentlichen Rechts der Gegenwart251Google Scholar
, “The Role of Targeted Killings in the Campaign Against Terror” (2008) 48(1) “Joint Force Quarterly22Google Scholar
, “Targeted Killing as Active Self-Defense” (2005) 36(2–3) Case Western Reserve University Journal of International Law319Google Scholar
and , “Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing” (2011) 4 University of Illinois Law Review1201Google Scholar
, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case” (2007) 89(866) International Review of the Red Cross373CrossRefGoogle Scholar
, “Targeted Killings and International Law: Law Enforcement, Self-defense and Armed Conflict” in and (eds.), International Humanitarian Law and Human Rights Law: Towards a Merger in International Law (Leiden: Nijhoff, 2008), pp. 525–53Google Scholar
, “‘Targeted Killings’ in an Age of Terror: The Legality of the Yemen Strike” (2004) 9(2) Journal of Conflict and Security Law277CrossRefGoogle Scholar