International humanitarian law (IHL) and international human rights law (IHRL) represent two different branches of international law. IHL purports to limit the effects of armed conflict; it is a part of international law that regulates the relationship between states (parties to the conflict and third states). On the other hand, human rights law was intended to be triggered only as a matter of constitutional law. Only after World War II (WWII) and the adoption of the Universal Declaration of Human Rights in 1948 (UNHR), were human rights “internationalized”. Nevertheless, their function remained the same, i.e. to govern relations between state and individual. In the aftermath of WWII, after the adoption of the Four Geneva Conventions in 1949, the gap between human rights law and humanitarian law began to close as the protection of civilians became immensely enhanced.
The two branches of law were never intended to clash. IHL is to be applied in situations of armed conflict and during cases of belligerent occupation. As for IHRL, there is contemporary discourse in international law that recommends application of a human rights obligation wherever a state exercises ‘effective control’ over a territory, or alternatively, over individuals outside its borders. This principle, which is swiftly gaining broad acceptance, does not however limit the scope of application of human rights only to situations outside armed conflict or occupation. In this regard, it opens the door for norm conflict between the two bodies of law.
Notwithstanding the fact that the two bodies of law relate to different actors, IHL (states) and IHRL (individuals), when we talk about issues of interaction we must consider two different approaches towards protection of human rights. This seems a rather logical conclusion since the only area where those two bodies of law can interact is indeed the protection of individual rights. For instance, there are differing interpretations as to the right to life, detention and the right to fair trial, women’s rights, the rights of free expression, association and movement, etc.
A conflict of norms exists when the application of IHL leads to a different result than the application of IHRL to the same circumstances. Perhaps, the clearest illustration of such norm conflict is situated around the protection of the right to life. IHL permits lawful killing of combatants and civilians, in accordance with the principles of distinction, military necessity and proportionality. On the other hand, the instrument best suited to mirror this protection in IHRL is the International Covenant on Civil and Political Rights (ICCPR). Article 6 reads: ‘Every human being has the inherent right to life … No one shall be arbitrarily deprived of his life.’ We can thus conclude that only arbitrary deprivation of life is prohibited. According to IHRL, deprivation of life is lawful in situations where it is necessary to use lethal force and where the threat cannot be counteracted through arrest.
In this context, a conflict of norms exists. The Geneva Conventions (IHL) permits killings that could be interpreted as otherwise arbitrary in light of IHRL.
Is There a Solution?
In the last decade, a number of discussions have taken place regarding this issue. After 9/11 and the declaration of a so-called ‘war on terror’, this question was brought to the table as there were diametrically opposite positions regarding the scope of applicability of IHRL. Many scholars proposed various legal techniques that should serve as a tool in addressing norm conflict between IHL and IHRL, favouring one over another. For instance, the Bush administration advocated the opinion that IHL, because of its lex specialis, should be exclusively applicable in terms of armed conflict.
In the Wall advisory opinion, the International Court of Justice (ICJ) maintained: (1) both IHL and IHRL are applicable in situations of armed conflict and (2) IHL has the status of lex specialis as regards IHRL. In the case where the right to life in armed conflict is at the stake, this would mean that both bodies of law apply.
The wording of the ICJ could be interpreted in two ways. The first being to completely deny the conflict of norms. The second approach is to acknowledge the conflict of norms and to seek a solution in light thereof. One example of norm conflict resolution can be found in the practice of the Inter-American Commission (the Commission). The Commission stated that IHRL is not intended to regulate means and methods of warfare and that humanitarian law ‘generally affords victims of armed conflict greater or more specific protections than do the more generally phrased guarantees in the American Convention and other human rights instruments.’ In other words, during an armed conflict, IHL specifies protection of individual rights in a more detailed manner than the IHRL and that is why it should be applied. In some cases IHRL’s protective provisions would be more detailed than IHL, and in that case IHRL would prevail.
The strongest argument against this type of norm conflict resolution, in using the principle of specificity, is actually the nature of the notion lex specialis. Lex specialis is not suitable to serve as a method in norm conflict resolution in international law; it is only a rule of interpretation of norms in the light of norm conflict avoidance, i.e. it can only be invoked to lead the interpretation towards avoiding the norm conflict. What does that mean to the right to life? If the rules of IHL are more specific to the particular issue at stake, they will assist the interpretation of the IHRL norm to be invoked. In this sense, the two bodies of law are not mutually exclusive, but rather complementary. One cannot displace another, nor can the lex specialis maxim be employed as a tool for displacement.
This opinion should not be neglected. However, what would be the solution for such unresolvable situations? Is there any guiding principle that could satisfy the harmony in international law and yet solve such conflict of norms? The quest for the appropriate answer is rather daunting and onerous. There are scholars who claim that ‘norm conflicts are in themselves are not so undesirable that they must be avoided or resolved at any cost.’ In that sense, the courts would then just point out the clashes and push states to widen their normative framework during the armed conflict. How realistic would it be to expect states to take the obligation of ‘teaching’ soldiers human rights law as much as the Geneva conventions? What would be the due diligencestandard to be applied during armed conflict? How should secondary norms be applied, i.e. should criminal or civil responsibility be invoked for breaches of IHRL? Those are only some of the questions that we should bear in mind when we are opting between international consistency and the sustainable solution in terms of conflict of norms.