Injecting Human Rights into International Humanitarian Law

Abstract

During times of war, the relationship between International Humanitarian Law and International Human Rights Law has always been controversial, and has generally been solved by prioritizing the rules of the former and minimizing the application of the latter’s. In practice, this has translated into insufficient standards of protection for individuals and, more specifically, into the endorsement of an unrestrained right to kill enemy combatants. This paper suggests a novel approach to this regime interaction: the application of International Human Rights Law during wartime should serve as an interpretative tool of International Humanitarian Law rules, strengthening the safeguards offered by the latter and, thus, better respecting the rights of individuals during hostilities. Regarding the right to life, this interpretation would require to abandon the idea of a right to kill opponents and, instead, demand that least harmful means be employed during military operations, when possible. Lethal force should be allowed only in cases where military necessity justifies it, henceforth avoiding causing individuals more harm than that strictly required. The purpose of this article is not to advocate for a prohibition of killing combatants –as the nature of armed conflicts would render that rule unattainable– ; it is, however, to establish a principle capable of guiding combatants’ behaviour towards a more humane conduct of hostilities.