Human rights in wartime : a framework for analysis
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European human rights law review, No. 6, 2008, p. 689-705
Until not long ago the relationship between international human rights law and international humanitarian law was understood on the basis of the classic distinction between the law of war and the law of peace: international humanitarian law (or the laws of war or jus in bello ) applies only in wartime, international human rights law in peacetime. Against this view, however, militates a growing body of case law. The author takes a step back from the detail of this growing case law and considers what the application of human rights law to armed conflict is for, and what concepts and principles underlie it. He examines the progressive unhinging of international human rights obligations from territoriality, which has removed one of the main obstacles to the application of human rights law to international armed conflicts. He considers the material scope of application of human rights law, and whether, in particular, there is any merit to the argument that armed conflict, as a subjectmatter, is not appropriate for regulation by it or that, in the event of conflict between human rights and the laws of war, the latter should always prevail. He finally examines a new argument that has been raised against the enforcement--rather than the applicability in principle--of human rights law in UN-authorised multilateral operations: the attribution of the violations to the United Nations itself, with the consequence of excluding the jurisdiction of human rights courts such as the Strasbourg Court.
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