The relationship between International Humanitarian Law and

International Human Rights Law: Parallel Application or Norm Conflict?

Fiona E. Nairn
March 14, 2012

Introduction
The interaction between international humanitarian law (IHL) and international human rights
law (IHRL) raises a number of difficulties; however this was not always the case. Prior to the
introduction of the UN Charter, a State had to make a declaration of war before engaging in
armed conflict. As a result there was a sharp distinction between war and peace and it was
certain when the laws of war were applicable. The introduction of the Charter has blurred this
distinction as there is now a prohibition on the use of force and further difficulties have arisen
following the introduction of human rights in international law. Primarily, it was believed
that human rights did not apply during armed conflict and must only apply in times of peace.
However, this separatist approach began to change as human rights treaties became more
extensive and IHL suffered due to the lack of interest in including supplementary rules on
civilian protection. 1 Thus it was no longer practical to treat these bodies of law separately and
it was questioned whether human rights could apply during an armed conflict, given their
universal nature.
This article will look at the interaction between the two bodies of law. Firstly, it will
discuss how the two separate fields of law have converged, given their different origins.
Subsequently, the differences in terms of scope of protection and obligations imposed will be
addressed. Having found that the two bodies of law are capable of parallel application,
several methods to aid their co-application will be discussed including creative interpretation,
and the lex specialis principle. However it will be concluded that the two systems are not

Provost International human rights and humanitarian law, (2002) p2

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always capable of parallel application and there will be times where the two systems conflict,
possibly resulting in a gap in protection of individuals.
Origin and History
International humanitarian law first existed in bilateral agreements between army
commanders but was codified into international law in the Hague Conventions. 2 It is now set
out in the four Geneva Conventions and additional protocols. 3 IHL is based on the principle
of reciprocity to ensure equal treatment of States troops. It balances military necessity with a
desire to reduce unnecessary suffering by regulating the conduct of hostilities and placing
restraints on belligerents. 4
International human rights law, on the other hand, is a more recent phenomenon
which developed as part of the constitutional law of individual States. 5 They were introduced
into the international sphere in 1948 with the adoption of the UDHR. 6 Human rights are now
found in several international and regional instruments, principally the ICCPR, ICESCR 7 , in
Europe: the ECHR 8 , and in Latin America: the American Convention on Human Rights.
Human Rights are based on the principle of humanity and protection of the inherent right of
individuals from the State because all individuals have certain basic fundamental rights which
should be upheld. 9
These two laws have developed entirely independently of each other, with very
different purposes in mind. While IHRL is based on considerations of humanity, IHL was
shaped by the tension between concerns for humanity, military necessity and a need for
reciprocity between States.
Despite the fact that the origin and rationale behind these two bodies of law was very
different, in recent years there has been a convergence of the two. It is now confirmed that
human rights can apply in times of armed conflict as well as peace. In the Consequences of
2

Hague Conventions of 1899 and 1907 see Schindler, D. Human Rights and Humanitarian Law:
Interrelationship of the Laws, (1981) p935
3
Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, 1864, Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, 1906, Geneva Convention III relative to the Treatment of Prisoners of War,
1929, Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, 1949, Protocol I
(1977) relating to the Protection of Victims of International Armed Conflicts, Protocol II (1977) relating to the
Protection of Victims of Non-International Armed Conflicts
4
Schindler, D. Human Rights and Humanitarian Law: Interrelationship of the Laws, (1981) p935
5
Ibid, p936
6
Universal Declaration of Human Rights 1948
7
International Covenant on Civil and Political Rights 1976, International Covenant on Economic, Social and
Cultural Rights 1976
8
European Convention on Human Rights 1953
9
See Universal Declaration of Human Rights, Preamble

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the Wall Opinion, the Court affirmed that: the protection offered by human rights
conventions does not cease in cases of armed conflict, save through derogations under Article
4 ICCPR. 10 The increased acceptance of the application of human rights during armed
conflict can also be seen from the Tehran Conference on Human rights which called on Israel
to apply both the ICCPR and Geneva Conventions in the Occupied Palestinian Territories. 11
The Human Rights Committee also clarified that: the ICCPR applies in situations of armed
conflict to which the rules of IHL are applicable. Both spheres of law are complementary, not
mutually exclusive. 12 This has also been affirmed by numerous General Assembly and
Security Council Resolutions. 13
Additionally, there has been a shift in IHL towards greater recognition of human
rights standards, referred to as the humanizing of IHL. 14 Common Article 3 of the Geneva
Conventions protects certain human rights guarantees and applies specifically to noninternational conflict, going further than the conventional field of application of IHL. 15 There
is also significant influence of human rights on the additional protocols to the Geneva
Conventions. Article 75 of Protocol 1 lists several fundamental guarantees which are to be
applied without discrimination, closely resembling human rights listed in the ICCPR. The
preambles of the additional protocols also provide evidence of the recognition of human
rights norms in IHL. 16 Finally there have been several recent international instruments that
have incorporated both human rights and humanitarian law provisions. 17
Thus it is confirmed that human rights will apply during armed conflict, subject to
derogations and that the purpose of IHL has changed, with greater emphasis placed on the
10

Consequences of the Wall case paragraph 104, also confirmed in the Nuclear Weapons case paragraph 25:
the protection of the ICCPR does not cease in times of war, except by operation of Article 4 of the ICCPR
whereby certain provisions may be derogated from
11
Tehran, Final Act of the international conference on Human Rights 1968
12
Human Rights Committee, General Comment No. 31 2004
13
For example, General Assembly Resolution 2444 (1968) and 2675 (1970), Security Council Resolution 1019
(1995), 1653 (2006)
14
Meron, Humanization of Humanitaraian Law, (2000)
15
Common article 3 The following acts are and shall remain prohibited at any time and in any place
whatsoever:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a
court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
16
Recalling that common Article 3, constitutes the foundation of respect for the human person in cases of armed
conflict not of an international character, Emphasizing the need to ensure a better protection for the victims of
those armed conflicts, Recalling that, in cases not covered by the law in force, the human person remains under
the protection of the principles of humanity and the dictates of the public conscience.
17
See for example, the UN Convention on the Rights of the Child 1990, the Optional Protocol to the Convention
on the Rights of the Child on the Involvement of Children in Armed Conflict 2000 and the Rome Statute to the
ICC 2002.

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protection of the individual through the inclusion of human rights norms. IHRL and IHL now
share a common ideal, protection of the dignity and integrity of the person and many of their
guarantees now overlap.
Similarities and Differences between the Two Regimes
Before discussing the application of IHL and IHRL, there are some differences which need to
be addressed. IHL binds all actors involved in an armed conflict and thus is directly binding
on individuals. IHL rules must be observed at the top by States and commanding officers, all
the way down to the individual soldiers. 18 If the conflict is internal, humanitarian law binds
the government and any groups fighting against it, thus it is applicable to States and non-State
actors. 19 Human rights, on the other hand, primarily impose binding obligations on
governments to ensure protection of individuals rights; individuals do not have duties under
IHRL. While there is growing opinion that human rights can apply to private non-state
actors, 20 responsibility principally falls on States. Thus while IHL binds every actor involved
in the conflict from the State to each individual soldier, IHRL predominately imposes
obligations on States.
A similarity between the two exists as individual criminality can be invoked for
serious violations of either. Individuals can be tried, domestically or at the international
level, 21 for violations of humanitarian law amounting to war crimes or violations of human
rights amounting to crimes against humanity or genocide.
Differences also exist between who is protected by IHL and IHRL. IHL protects all
persons who may be affected by an armed conflict, including combatants, prisoners of war
and civilians but only whilst hostilities are on going. 22 On the other hand IHRL applies to all
18

This was observed in the case US v Krupp et al. US Military Tribunal at Nuremberg Volume 9 Case No 10
p130 the laws and customs of war are binding no less on private individuals than upon government officials
and military personel.
19
Article 1 of Protocol II a non-international armed conflict takes place in the territory of a Party between its
armed forces and dissident armed forces which, under responsible command, exercise such control over a part
of its territory as to enable them to carry out sustained and concerted military operations.
20
See for example Appleby v. UK (2003) 37 EHRR 38 which involves a private individuals and a private entity
bringing a case to the ECHR against the State for the actions of another private entity. Also see the US case of
Pruneyard Shopping Center v Robins
21
For example the International Criminal Tribunal on Yugoslavia, the International Criminal Tribunal on
Rwanda and International Criminal Court
22
Geneva Convention III sets out the criteria for determining who is entitled to POW status under Article 4
POW. Mainly: mmbers of the armed forces of a Party to the conflict, as well as members of militias or volunteer
corps forming part of such armed forces or members of other militias and members of other volunteer corps,
including organized resistance movements, belonging to a Party to the conflict and operating in or outside their
own territory, provided: they are commanded by a person responsible for his subordinates; have a fixed
distinctive sign recognizable at a distance; carry arms openly; and conduct their operations in accordance with
the laws and customs of war. Geneva Convention IV Article 4 persons protected by the Convention are those

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persons, at all times, however there is a jurisdictional requirement. The ICCPR states: each
State Party undertakes to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in Covenant. 23 A State is thus under an obligation to ensure
human rights only to those persons within its jurisdiction. Thus, IHL only protects those
involved in the conflict, but once it has been established that IHL is in operation, it protects
everyone involved, whereas a state is only responsible for violations that occur within its
jurisdiction.
Application of IHL and IHRL
It has now been established that both IHL and IHRL can apply during an armed conflict but
how will these bodies of law relate to one another in light of their parallel application and
increasingly similar object and scope? In certain circumstances, both sets of rules will be able
to apply together and co-exist. There are several methods that can be used for parallel
application which I will now examine including creative interpretation, lex specialis principle
and the norm which best protects the individual. Under creative interpretation, two specific
rules will be discussed: the right to life and the prohibition on torture.
a) Creative Interpretation
Creative Interpretation involves interpreting both systems in such a way as to allow for
mutual application. Two methods which can assist this creative interpretation include
derogation of human rights and Article 103 of the UN Charter.
Human rights can be derogated from in times of emergency to allow States to
adjust their obligations temporarily. The ICCPR allows States to derogate from human rights:
in time of public emergency which threatens the life of the nation, to the extent strictly
required by the exigencies of the situation. 24 However certain rights can never be derogated
from including: the right to life, prohibition against torture and the prohibition against
slavery. 25 Parties must declare which rights they have derogated from and give reasons for
the derogation. 26
who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in
the hands of a Party to the conflict or Occupying Power of which they are not nationals
23
ICCPR, Article 2(1) Also ECHR Article 1 The High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this Convention.
24
ICCPR Article 4
25
ICCPR Article 4(2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made
under this provision.
26
The ECHR also allows for derogations under Article 15, In time of war or other public emergency
threatening the life of the nation any Party may take measures derogating from its obligations under this

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Article 103 of the UN Charter states that: in the event of a conflict between
obligations under the Charter and obligations under any other international agreement, the
Charter shall prevail. The Al Jedda case illustrates an example of human rights obligations
being suspended because of Article 103. The HOL held that the applicants right under
Article 5(1) of the ECHR, the right to liberty, was qualified in light of Security Council
Resolution 1546 which authorised Al-Jeddas detention without charge because of Article
103. 27
I will now examine two IHL and IHRL rules which can be reconciled through creative
interpretation: the right not to be arbitrarily deprived of life and the prohibition against
torture.
i) Freedom from Arbitrary Deprivation of Life
In theory the right to life under IHRL and IHL is conflicting. Article 6(1) of the ICCPR says:
Every human being has the inherent right to life. No-one shall be arbitrarily deprived of his
life. Whereas IHL prohibits an attack which may be expected to cause incidental loss of
civilian life which would be excessive in relation to the concrete and direct military
advantage anticipated. 28 While IHL says that loss of life is acceptable if it is not excessive to
the military advantage, IHRL would seem not to allow loss of life even if it has a military
advantage. However this depends on how the word arbitrary is interpreted. During an armed
conflict, what constitutes an arbitrary deprivation of life will differ from times of peace.
Therefore IHL can be used to determine the meaning of arbitrary. This approach can be seen
in the Nuclear Weapons case: whether a particular loss of life is to be considered an arbitrary
deprivation of life contrary to Article 6, can only be decided by reference to the law
applicable in armed conflict and not deduced from the terms of the Covenant itself. 29 Thus
the rules under IHL have become very useful in interpreting what constitutes an arbitrary
deprivation of life under the IHRL.

Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law. No derogation from Article 2, except in respect of
deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this
provision.
27
R (on the application of Al-Jedda) v Secretary of State for Defence UKHL 58 (2007) paragraph 118 by virtue
of articles 25 and 103 of the Charter, the obligation of the United Kingdom forces in the MNF to detain the
appellant under Resolution 1546 prevailed over the obligations of the United Kingdom under article 5(1) of the
Convention.
28
Protocol I Article 51(5)(b)
29
Nuclear Weapons case, paragraph 240

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The right to life under the ECHR has expressly stated how it is to be reconciled with
IHL as Article 15(2) states that no derogation from Article 2, the right to life, except in
respect of deaths resulting from lawful acts of war shall be made under this provision.
This demonstrates how prime facie conflicting provisions in IHRL and IHL can be
easily co-applied through derogations and creative interpretation.
ii) Freedom from Torture
The prohibition against torture is provided for in both IHL, IHRL and in the Torture
Convention. 30 The ICTY, in a number of cases, has had to draw on both bodies of law in
order to clarify the content of the prohibition of torture when prosecuting for war crimes
which include torture as part of the crime. 31 As there is no definition of the prohibition of
torture in IHL, the tribunal had to refer to IHRL to clarify the meaning of the prohibition. 32
Further, Delalic confirmed that in order to understand the content of the prohibition of torture
as a war crime under IHL, extensive analysis of the content of the prohibition of torture under
human rights treaties is required. 33 Thus IHRL serves as an interpretive guide when applying
torture under IHL.
These examples of the right to life and prohibition against torture demonstrate the parallel
application of rules of IHL and IHRL, which can both be used to interpret and apply the other
through creative interpretation. I will now analyse the lex specialis principle which can be
used to apply IHL and IHRL rules where the creative interpretation approach fails.
b) Lex Specialis
The principle of lex specialis states that where the application of two rules would result in
conflict, the specific rule displaces the more general rule. Therefore it has often been
suggested that the best way of reconciling IHRL and IHL is by applying the lex specialis rule
allowing IHL to displace IHRL.
The ICJ referred to this principle in the Nuclear Weapons Opinion. It questioned
whether IHRL or IHL would apply when assessing the right to life in light of the legality of
the use of nuclear weapons. The ICJ clarified that IHRL does apply in armed conflicts but
then went on to say that in the current situation: the test of what constitutes an arbitrary
deprivation of life falls to be determined by the applicable lex specialis, namely IHL which is
30

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 1987
See International Criminal Tribunal for the Former Yugoslavia Statute Article 2(b) and Rome Statute of the
International Criminal Court, Article 8(2)(a)(ii) War crimes include - Torture or inhuman treatment, including
biological experiments
32
ICTY, Furundzija,paragraph 159 and Decalic paragraph 440-459
33
ICTY Delalic, paragraph 458-459
31

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designed to regulate the conduct of hostilities. This can only be decided by reference to IHL
and not deduced from the terms of the ICCPR itself. 34 Thus the ICJ refers to IHL rules on
arbitrary deprivation of life as lex specialis, displacing the IHRL rules on right to life during
an armed conflict.
The ICJ also makes reference to the principle of lex specialis in the Consequences of
the Wall Opinion by stating that where rights are contained within both laws, the court will
have to take into consideration both branches of law, namely human rights law and, as lex
specialis, international humanitarian law. 35
Thus it can be seen from these cases that the lex specialis principle can reconcile a
conflict between IHRL and IHL rules by displacing the IHRL rule in favour of IHL. This
approach to reconciliation may seem straightforward and clear, however a number of
problems arise. The ICJs approach creates uncertainties as to how the lex specialis principle
is to apply to the conflict between IHRL and IHL as it does not clarify how this principle is to
be used. It is unclear from the two opinions whether the ICJ intended to apply the lex
specialis principle to afford IHL primacy over IHRL in all situations during an armed conflict
or just with regard to a particular norm, such as the right to life. The ICJs opinion in the
Nuclear Weapons case seems to be applying lex specialis to the case at hand, saying that IHL
displaces IHRL in the context of a right to life violation. However it gives no clarification as
to how the lex specialis principle would apply in other circumstances. However in the Wall
case, the ICJ appears to deduce that IHL is always the lex specialis, displacing IHRL when it
has been established that an armed conflict exists.
These advisory opinions lead to confusion as to the application of IHL and IHRL
where a conflict results. The Nuclear Weapons case only remarked on one norm, the right to
life and did not examine how the lex specialis might apply to other norms. Thus the analysis
was limited to one particular problem applying to one norm. The Wall case, on the other hand
refers to IHL generally as lex specialis to IHRL, commenting that one regime is special to the
other. There is a danger with assuming all rules of IHL are lex specialis to IHRL as a whole.
When there is a conflict, human rights should not be completely extinguished by the lex
specialis principle as it results in a level of tolerance of serious human rights violations and is
inconsistent with the view of the international community.
Following the two advisory opinions, there was a retreat from the application of lex
specialis in the DRC v Congo case. The ICJ failed to refer to the lex specialis principle as it
34
35

Nuclear Weapons Advisory Opinion paragraph 25

Consequences of the Wall Advisory Opinion paragraph 106

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applied in the Nuclear Weapons and Wall cases, but instead stated that: both branches of
international law, namely IHRL and IHL, would have to be taken into consideration. 36 Also
the ICRC declared that though perfectly consistent for interpreting the precise content of the
right to life, lex specialis could not necessarily be generalised to all relations between IHL
and IHRL. On the contrary, as human rights law is more precise than IHL in certain domains,
the relation interpretation must also be able to operate in the other direction. 37
Further problems arise when using the lex specialis principle to reconcile IHL and IHRL. It
has been commented that the principle of lex specialis is too vague to apply to the
relationship between IHL and IHRL. Prudhomme states that the vagueness of the lex
specialis principle generates serious reservations as to its ability to stand as a sound
theoretical model that clarifies the co-existence of the two disciplines. 38 Although the
principle states that a specific norm prevails over the more general one, there is no indication
how to determine which norm is specific or general. While in the Nuclear Weapon case it
was clear that in terms of the right to life during conflict, IHL is more specific, this is not
always going to be as clear with other norms such as economic and cultural rights.
It has also been commented that international law is not a suitable system for the
application of the lex specialis principle. Lex specialis is much better suited to a domestic law
system, where there is a clear structure based on a hierarchy and central legislature. 39
International law is too fragmented and decentralised for lex specialis to apply. It is based on
treaties which have all developed independently of each other and rarely incorporate clauses
which provide for logical relationships between them. Due to this lack of clear structure, it
becomes very difficult to identify whether one norm should prevail over another. Thus the lex
specialis principle is not well suited to apply to conflicts in international law and it has been
commented that it oversimplifies the more complex relationship between the IHRL and
IHL. 40
Thus despite the fact that the lex specialis principle was put forward by the ICJ in two of its
advisory opinions, it does not seem to be the best method for reconciling the application of
IHL and IHRL.
36

Case concerning Armed Activities on the Territory of the Congo (DRC v Uganda) 2005 paragraph 216
International Committee of the Red Cross, IHL and other Legal Regimes: Interplay in Situations of Violence
(2003) in Steiner International Human Rights in Context: law, politics, morals: text and materials,(2000) p401
38
Prudhomme Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship? (2007) p381
39
Lindroos, Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis, (2005)
p28
40
Prudhomme Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship? Title (2007)
37

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c) The Norm which Better Protects the Individual

Those who oppose the lex specialis principle have suggested applying the norm which better
protects the individual where norms conflict. Schabas refers to this as the belt and
suspenders approach stating that where both regimes apply, the individual should benefit
from the more favourable one. 41 This approach seems attractive because it will guarantee the
individual the greatest level of protection possible, which is ultimately the aim of human
rights and humanitarian law. However this approach also suffers from flaws. Difficulties may
arise in establishing which regime provides the greater protection. A conflict is likely to arise
between protection of the individual versus the protection of society. This approach was also
denounced in the DRC v Uganda case where the Courts findings exemplified a warning that
even if the protection under one regime is less than under the other regime, the applicability
of the latter should not and will not be prevented. 42
Thus the two bodies of law are capable of parallel application in a number of situations and
can be reconciled to apply simultaneously in times of armed conflict. It will depend on the
situation and the rights in question as to how they should be reconciled. Where creative
interpretation fails, there are two opposing methods that can be used, the lex specialis
approach and the belt and suspenders approach, although there are drawbacks with both.

Conflicting Norms
Although generally IHL and IHRL are parallel regimes which will be mutually
complementary in providing protection to individuals during armed conflicts, this will not
always be the case. The capacity of IHL and IHRL for parallel application may not always be
possible as there may become a point where similarities between the two end and differences
emerge. A situation may arise where a conflict cannot be reconciled and a judgement has to
be made to violate one in favour of the other or, worse still, where a gap in the protection
results. I will now examine two situations where the rules are not capable of parallel
application and where a conflict or gap may result: the laws of occupation, and the laws on
arbitrary detention in the context of the war on terror.

41

Schabas Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of
Armed Conflict, and the Conundrum jus ad bellum (2007)
42
DRC v Uganda case paragraph 218-221 and Orakhelashvili, the Interaction between Human Rights and
Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence, (2008) p163

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a) Laws of Occupation
Laws of occupation apply where a State becomes the belligerent occupant of another
territory. Under IHL, the occupying State must: take all the measures in his power to ensure,
as far as possible, public order and safety, while respecting, unless absolutely prevented, the
laws in force in the country. 43 The Fourth Geneva Convention also confirms this by stating
that the penal law of the occupied territory shall remain in force. 44
However IHRL requires the occupying State to take all measures necessary to ensure
its human rights obligations in the territory.45 This is provided that the IHRL obligations of
the occupying State are in force in the occupied territory. For the purposes of this discussion,
I will assume that the occupying State has ratified the ECHR. Under the ECHR, for a States
human rights to apply extraterritorially, the State must have effective control of the territory.
This has been confirmed in several ECtHR cases, primarily Bankovi v Belgium. 46
Assuming the State has effective control and that its human rights obligations are
imposed, this could result in a conflict with the rules of IHL. IHRL requires that the
occupying State take all measures necessary to ensure its human rights obligations, whereas
IHL requires that the laws already existing on the territory remain in force. While this may
not always present a conflict, if we take the example of the UK occupying a territory where
Sharia law is part of the domestic law, such as Iran, the application of both rules becomes
problematic. 47 The Penal Code of Iran allows for stoning as a punishment for adultery 48 ,
which would be incompatible with both the ICCPR and ECHR, at the very least, because it
would amount to torture or inhumane treatment. On the one hand, IHL prohibits the UK from
changing the law, however IHRL requires the UK to take all measures possible to prevent the
stoning of adulterers. How can these two norms be reconciled?
The only way would be to read down one of the rules. The human rights rule could
not easily be read down because the prohibition on torture and non-degrading treatment is a
non-derogable provision under Article 4 ICCPR and because it is a norm of jus cogens, a
43

Hague Regulations, Article 43

Fourth Geneva Convention, Article 64
45
ECHR, Article 1 and ICCPR Article 2(1)
46
However it has to be remembered that the ECHR has often taken a strict reading of the effective control test
and this has been followed in the UK Courts, for example the HOL in Al Skeini followed Bankovi and found
that UK did not exercise effective control over Iraq except where held an individual in a UK prison. But see
other ECHR cases such as, Cyprus v Turkey (Merits) 2001, Ilacu v Moldova and Russia (Merits) 2004, Issa
and Others v Turkey (Merits) 2004, and, Loizidou v Turkey (Merits) 1996 for a les strict reading of effective
control.
47
Milanovic, M. A Norm Conflict Perspective on the Relatioship between International Humanitarian Law and
Human Rights Law, (2010) p480
48
For the provisions allowing this see the Mission for Establishment of Human Rights in Iran extract from
Islamic Republic of Irans Current Judicial Laws at: http://mehr.org/jazaa.pdf
44

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fundamental principle accepted by the international community, from which no derogation is

permitted. 49 It is very unlikely that IHRL would ever be read down so as to permit stoning for
adultery.
The IHL rule could be read down as the Hague Regulation requires the occupying
State to ensure the laws in force, unless it is absolutely prevented from doing so. One could
argue that human rights norms prevent the State from adhering to IHL. Article 64 50 would be
harder to read down as it allows the domestic penal code to be repealed or suspended only if
they constitute a threat to the occupying States security or an obstacle to applying the
Geneva Convention. I do not realistically see how the conflict between the human rights
norm and this could constitute a threat to the UKs security. Thus it seems to me virtually
impossible to reconcile these two norms without arbitrarily reading down one of the rules,
which does not seem viable.
Further it would be difficult to see how Article 43 of the Hague Regulation could be
reconciled with the Convention on Discrimination against Women because certain provisions
of the Convention require the implementation of legislation to ensure the rights contained in
it. 51 There is also a potential conflict between the right to self-determination contained in
numerous human rights instruments 52 and the IHL rules of occupation. This appears to be one
of the most glaring contradictions and it is unclear how they would be reconciled.
Thus while it is often the case that IHL and IHRL can exist in parallel and apply
harmoniously, the laws of occupation represent a good example of conflict where the two
systems cannot be reconciled without allowing for an arbitrary reading down of one of the
rules. If this situation was to occur in practice, a political or policy decision would have to be
made as to which should be given priority over the other. This may require one rule to be
violated in order to ensure adequate protection by the other.
b) The War on Terror
Another potential situation where rules of IHL and IHRL are incapable of parallel application
relates to the war on terror. Since 9/11 the US, the UK and other NATO States have
pursued a policy known as the war on terror in an attempt to defeat terrorist organisations.
Terrorism represents a difficult challenge in relation to this discussion because terrorist
actions and actors do not fit easily into the existing legal norms and sanctions of IHL and
49

Furundzija paragraph 155-157

Fourth Geneva Convention
51
UN Convention on the Elimination of All Forms of Discrimination against Women 1979, Article 2,
52
ICCPR, Article 1(1) ICESCR, Article 1
50

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IHRL and because there is no international definition. Several problems arise in relation to
the war on terror including what legal status this war should be given in terms of IHL and
how far this war threatens the life of the nation to allow human rights derogations. In
particular these problems relate to arbitrary and indefinite detention of persons.
The right to liberty is provided for in Article 9 of the ICCPR: anyone who is deprived
of his liberty by detention shall be entitled to take proceedings before a Court by which the
lawfulness of his detention shall be decided without delay. On the other hand under Article
118 of the Third Geneva Convention, a prisoner of war (POW) shall be released without
delay after the cessation of active hostilities. There is no need to determine the status of a
POW once detained, and there is no requirement to review their detention under Article 5.
Therefore under IHL rules, a POW can be detained indefinitely without review until the end
of the conflict. If the detainee is not a POW, Article 43(1) of the Forth Geneva Convention
requires the detention of a civilian be subject to periodic review by an appropriate court or
administrative board. Thus the rules for indefinite detention and judicial review are very
different under IHL and IHRL. The ICCPRs reference to anyone who must be able to
challenge his detention makes it very difficult to reconcile with IHL.
Problems then arise in relation to the IHL rules on detention and the war on terror
because the legal status of this war is uncertain. Does it amount to an international armed
conflict so as to afford the full protection of the Third Geneva Convention or to a noninternational conflict under Protocol II and common Article 3? Parties to the so called war
on terror continue to refer to this term without deliberating on the status of the war.
The situation cannot amount to an international conflict because terrorist
organisations do not consist of separate States to allow for the existence of a conflict with two
or more parties, 53 although one could argue this existed during Afghanistan and Iraq
conflicts. However the situation does not fit as a non-international conflict either because it
transcends the borders of the State. 54
If the war was thought of as an international conflict, combatants would be given
POW status and could be detained until the end of the hostilities. However there is no
perceived end to this war, therefore even if terrorists were detained as POW, they would be

53

Third Geneva Convention, Article 2 present Convention shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of
war is not recognized by one of them
54
Kretzmer, D. Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of
Defence? 2005 p202

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subject to indefinite detention. In the Hamdan v Rumsfeld case, 55 the US Supreme Court
classified the conflict as non-international in character and found that the US Government
had breached common Article 3. However the Supreme Court did not specify how or why
common Article 3 applied. 56 The provisions for non-international armed conflicts are set out
in Protocol II and common Article 3 of the Geneva Conventions. However the threshold for
an internal conflict is difficult to determine under these provisions because common Article 3
gives no guidance on how to determine a non-international conflict as it simply refers to
armed conflicts not of an international character occurring in the territory of one of the
Parties. 57 Further, Protocol II is difficult to apply because of the high threshold for its
application. 58 Meron has commented that many States involved in internal conflicts refuse to
accept that the Protocol applies to their situation. 59 This is demonstrated by the fact that the
UK failed to ratify Protocol II until the end of the peace process in Northern Ireland,
following the 1970s conflict. Further, this is evident from the reluctance of the US to
declare that a non-international conflict exists so as to refrain from affording detainees at
Guantanamo Bay protection under IHL.
Despite the fact that the US has not announced whether an international conflict or
internal conflict exists, the US announced that prisoners detained during the conflict were
considered unlawful combatants. 60 There is no status of an unlawful combatant listed in
the Geneva Conventions and the use of this phrase is greatly controversial. It is thought that
this term refers to all persons taking a direct part in hostilities without being entitled to do so
and who therefore cannot be classified as POW. 61 The ICRC stated that: whereas the terms
combatant, POW, and civilian are defined in IHL, the term unlawful combatant, does
not appear. 62 It is thought that this term is used to ensure that protection cannot be provided

55

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)

Milanovic, Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and
the Israeli Targeted Killings case, (2007) p377
57
For an analysis of the conditions of application of Common Article 3, see Nicaragua case paragraphs 215-220
and Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New
Instrument (2000) p599
58
Article 1 of Protocol II states that a non-international armed conflict: takes place in the territory of a Party
between its armed forces and dissident armed forces which, under responsible command, exercise such control
over a part of its territory as to enable them to carry out sustained and concerted military operations. It then
rules out situations such as riots and sporadic acts of violence. Carillo, and Logique: Contemporary Issues in
International Humanitarian Law as Applied to Internal Armed Conflict, (1999)
59
Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New
Instrument (2000) p600
60
In 2002 by US Secretary of Defense Rumsfeld See Rumsfeld v. Padilla, 542 U.S. 426 (2004), Hamdi v.
Rumsfeld, 542 U.S. 507 (2004)
61
Dormann, the legal situation of unlawful/unprivileged combatants (2003) p 43
62
Ibid, p 43
56

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to individuals as POW under Geneva Convention III. It remains controversial whether

protection can be afforded to unlawful combatants under Geneva Convention IV if they meet
certain requirements. 63 Israel has gone as far as to claim that unlawful combatabts are not
protected under either the thrid or fourth Geneva Conventions and enacted its own laws on
the imprisonment of unlawful combatants. 64
The use of this phrase by the US to avoid affording protection under the Geneva
Conventions has been demonstrated in the case of Rumsfeld v. Padilla. Padilla is a US
citizen, held in solitary confinement in the US. Despite the fact that the Constitution prohibits
US citizens being detained without charge, the US has avoided charging him by declaring he
is an enemy combatant. Therefore the US has circumvented IHL rules by labelling the
detainee an enemy combatant a status which affords little protection under the Geneva
Conventions, if any. The US has also denied him protection under IHRL by stating that the
Constitution rules do not apply because he is an enemy combatant. 65
Another issue in relation to the application of human rights and the war on terror
relates to how States have used the derogation provisions in Article 5 ICCPR. 66 Responding
to terrorism by derogating from human rights provisions creates several problems. Firstly, the
practice of derogation by States is very different from the treaty conceptualization of how
derogation is to be used. 67 In practice, States have derogated where the so called emergency
situation is a long-term and somewhat permanent affair, whereas derogation was designed as
a response to a situation of necessity, indented as a short term solution to ultimately return the
State to normality. 68
Derogation of the Article 9 right to liberty is allowed under Article 4 of the ICCPR.
The UK derogated from this right in 2001, however it is the only State to have expressly
derogated because of 9/11 and the war on terror. Derogation is particularly problematic in the
war on terror because there is no perceived end of the public emergency. Derogations were
63

Delalic case paragraph 271 if an individual is not entitled to the protections of the Third
Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the
ambit of Convention IV, provided that its article 4 requirements are satisfied. However, for an opposing
opinion see Greenwood, C. International Law and the War against Terrorism, 2002 p316-317, Inter-American
Commission on Human Rights, Report on Terrorism and Human Rights, 22 October 2002, paragraph 74 and
Goldmann, R. Unprivileged combatants and the hostilities in Afghanistan : Their status and rights under
international humanitarian and human rights law,(2002) p38
64
Incarceration of Unlawful Combatants Law, 57622002, See also Human Rights Watch, Israel:
Opportunistic Law Condemned (2002)
65
Rumsfeld v. Padilla, and Zayas, Human Rights and Indefinite Detention, (2005) Levy, Jose Padilla: No
charges and no trial, just jail, (2003)
66
and the derogation provision under Article 14 ECHR
67
Aoldin, The Emergence of Diversity: Differences in Human Rights Jurisprudence, (1995)
68
Aoldtin, The No-Gaps Approach to Parallel Application in the context of the War on Terror, (2007) p 577

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not intended to be long lasting and so it can be questioned whether derogations are permitted
in these circumstances. Further it can be questioned whether the 9/11 attack which occurred
in the US can be interpreted as an act which threatens the life of the UK and other nations.
Thus the war on terror policy creates a gap in the protection afforded to individuals by IHL
and IHRL. The reference to war creates ambiguities as to the status of the conflict under
IHL and thus ambiguities towards the scope of protection to be afforded to detainees.
However the war on terror has been perceived by States as sufficient to amount to a public
emergency justifying derogations from human rights treaties and in the US, from the Bill of
Rights. Therefore the situation exists where individuals are not protected or fully protected
under IHL, as it is not an armed international conflict; however they are not fully protected
under IHRL because States have derogated from their obligations, either expressly or through
incompatible legislation.
Several cases have come before the US and UK courts which demonstrate the legal
ambiguity of the situation under the war on terror and represent the way in which
Government policies have attempted to leave individuals unprotected from IHL and IHRL. In
2002, the UK Court of Appeal found that the indefinite detention of 11 Muslims in Belmarsh
prison was compatible with the UKs human rights obligations. Fortunately, the HOL
reversed this finding and found the basis for the detention, the Anti-terrorism Act 2001,
incompatible with the ECHR. 69 A similar situation has occurred in the US with persons
suspected of terrorism being subject to indefinite detention and held in Guantanamo Bay. In
Rasul v Bush the Supreme Court held that the persons being held in Guantanamo Bay are
entitled to legal council and to challenge the legality of their detention. 70 Until this case in
2004, several Courts had held that the US Bill of Rights did not apply to aliens detained in
Guantanamo who did not have the right to habeas corpus. 71
Therefore the US and UK governments have exploited this gap in the protection of
rights to liberty and security under IHL and IHRL by pronouncing their fight against
terrorism as a war on terror. This has allowed for derogation and a blatant disregard for
human rights standards which could only be allowed during an armed conflict or situation
threatening the life of the nation. It does not appear to me that such an emergency exists in
either the US or UK to justify these derogations. However, it has also not been recognised as
69

Anti-terrorism, Crime and Security Act 2001

Rasul v. Bush 542 U.S. 466 (2004)
71
Coalition of the Clergy v. Bush 310 F.3d 1153
70

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an international or internal armed conflict to afford individual detainees protection under the
Geneva Conventions.
Conclusion
This article illustrates that while humanitarian law and human rights law have very different
origins and contain certain fundamental differences, they are capable of parallel application.
This parallel application can enhance the scope of protection offered to individuals as one
body of law can influence the application of the other to fill in gaps that may arise;
demonstrated with regard to the right to life and the prohibition on torture. A number of
methods can be used to ensure their mutual application including: creative interpretation; the
lex specialis principle; and the norm which best protects the individual. The coexistence of
IHL and IHRL, however, should not be uncritically assumed. Situations can arise where the
application of rules of both IHL and IHRL will result in a norm conflict and where this
cannot be resolved, a policy decision must be made to apply one over the other. When this
happens it is important to ensure that protection is still available to individuals. Unfortunately
the war on terror has created a situation which has allowed governments to disregard their
obligations under both systems because the status of the conflict is ambiguous. It was hoped
that the parallel application of IHL and IHRL would avoid situations like this as one system
could fill-in the gaps of the other. This situation is extremely problematic and one must look
to the Courts to ensure that Governments violations of their domestic and international
obligations do not remain unchallenged.

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