Edited by Robert Kolb and Gloria Gaggioli
Chapter 23: The European Court of Human Rights and international humanitarian law
In a sense, it would be possible to dispose of this issue with little or no discussion: the European Court of Human Rights has never applied the rules of international humanitarian law. That is as it should be – its jurisdiction, after all, extends to the enforcement of the European Convention on Human Rights (ECHR) and no further. Nonetheless, there has always been the possibility of its using other international legal rules (including those of international humanitarian law) as a device to assist in the interpretation of the Convention rights, and hence in its enforcement duties. The 1969 Vienna Convention on the Law of Treaties, for example, provides in Article 31(3)(c) that, in interpreting the terms of any treaty, ‘any relevant rules of international law applicable in the relations between the parties’ shall be taken into account. Similarly, in frequently quoted passages of its Nuclear Weapons and Palestinian Wall Advisory Opinions, the International Court of Justice has indicated that human rights law continues to be applicable during armed conflict, and that the relationship between human rights and humanitarian law can be characterised in the following way: ‘… some rights may be exclusively matters of humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’. International humanitarian law is thus considered to be lex specialis in the context of armed conflicts. Whilst, historically, it is probably fair to say that the Strasbourg machinery encountered a relatively limited range of cases in which humanitarian law was relevant,
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