A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study

Abstract

It is generally accepted that although human rights law is applicable in armed conflicts the rules of international humanitarian law take precedence as lex specialis. However, uncertainties remain. Do norms with a lex specialis character override more general rules systematically and invariably, or is there room for complementarity? To what extent are human rights standards applicable in armed conflicts and in how far is the jurisprudence of regional human rights courts pertinent? The ICRC Study on Customary International Humanitarian Law provides a relevant example of how the normative relationship between human rights law and humanitarian law on the basis of the lex specialis rule can be conceived. The article examines this normative relationship by analysing how the Study uses the jurisprudence of human rights bodies in order to specify fundamental guarantees of humanity. The article argues that although the Study's approach works in principle because the use of human rights law in it is basically restricted to proving the existence of fundamental guarantees problems arise, inter alia, in relation to proportionality when using force, in relation to human rights' limitation clauses and in relation to the different dimensions of human rights protection. Moreover, since concrete human rights standards depend very much on their circumstances because of the contextual techniques employed in interpretation of human rights law they can neither readily be transferred to the situation of an armed conflict nor be easily applied outside their regional context. Thus, the concrete application of the refined human rights law to interpret humanitarian law is not always as valuable as might be thought.