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Part III - Human rights and humanitarian law: challenges and commonalities

Published online by Cambridge University Press:  05 March 2015

Gerd Oberleitner
Affiliation:
Karl-Franzens-Universität Graz, Austria
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Summary

Human rights and humanitarian law: challenges and commonalities

The complementarity of human rights and humanitarian law and the way in which human rights informs the interpretation and development of humanitarian law cannot themselves overcome existing differences between the two legal regimes, nor should they be an invitation to gloss over possible obstacles to a proposed human rights-based jus in bello in law and practice. Theodor Meron’s warning, that despite the convergence of human rights and humanitarian law any such obstacles and objections to the application of human rights in armed conflicts need to be considered carefully, remains valid. This Part of the study will examine some crucial arguments which question the applicability of human rights in armed conflicts, and the respective questions of law and practice which result from the complementarity of human rights and humanitarian law, loosely around the legal concepts of ratione temporis, loci, materiae and personae.

One particularly important objection to the application of human rights in armed conflicts is the argument that ratione loci international human rights treaty law cannot apply extra-territorially. The idea that armed forces carry with them human rights obligations when acting abroad remains divisive, less so when they operate under a UN Security Council mandate in peace support operations, but very much so in situations of international armed conflicts and occupation. Another objection ratione materiae is that the broad and general individual entitlements under international human rights law cannot be matched with international humanitarian law’s paradigm of specific and pragmatic state obligations. The most vivid debate is on one particular right which was deliberately omitted in the previous chapters because it deserves greater attention: the right to life. The way in which human rights law and humanitarian law approach the use of deadly force demonstrate for many the limits of applying human rights in armed conflict.

Type
Chapter
Information
Human Rights in Armed Conflict
Law, Practice, Policy
, pp. 129 - 130
Publisher: Cambridge University Press
Print publication year: 2015

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