The Interplay of Human Rights and Humanitarian Law: The Approach of the ICTY

Abstract

The interrelationship of international human rights and humanitarian law is, in spite of the existence of a considerable level of literature on point, still somewhat uncertain. There have been claims that the two areas have increasingly converged, which have been countered with arguments to the effect that the twain never shall meet. This piece sees to investigate the relationship between these areas though an empirical analysis of the practice of the ICTY, and the way in which that Tribunal has sought to use human rights jurisprudence in a humanitarian law, and international criminal law, context. To show this, the piece analyses the relevant jurisprudence of the ICTY. Whilst giving credit where it is due, this piece attempts to show that the ICTY's practice, whilst not unimpeachable, has, in its more recent pronouncements, taken a more sophisticated approach than other international courts. With this in mind, he piece argues that in spite of its flaws, the later jurisprudence of the ICTY has helped to show that the interrelationships of international law, criminal law, human rights law, and international criminal law are not simple. As such the ICTY as made a useful contribution to the area, and one which has been somewhat more carefully thought through than the comments of other international courts, who have used the ICTY's jurisprudence without passing comment on the differentials that may exist between international criminal law and international law, and human rights law, in particular.