International human rights law in time of armed conflict
The Oxford handbook of international law in armed conflict
Oxford : Oxford University Press, 2014
The Geneva Conventions of 1949 govern automatically warfare as well as international and non-international armed conflicts. The applicability of the ‘law of war’ was previously delimited by formal acts of state such as a declaration of war or a formal ‘recognition of belligerency’, a formalistic approach that was significantly revised by the Geneva Conventions. This chapter examines the relationship between IHL and international human rights law (IHRL). It first discusses the nature of the ‘armed conflict’ inquiry and considers IHL as lex specialis displacing or qualifying the application of IHRL. It then outlines three fundamental respects in which the lex specialis claim misconstrues or distorts IHL: IHL and affirmative authorization, ‘armed conflict’ as determinant of regime boundaries, and reciprocity and humanitarian protection as inducement for compliance. It argues that the very notion of competing legal frameworks is incompatible not only with the text, structure, and history of the Geneva Conventions, but also with the institutional and behavioral foundations of contemporary IHL.