Edited by Robert Kolb and Gloria Gaggioli
Chapter 3: Theories on the relationship between international humanitarian law and human rights law
The relationship between human rights law and international humanitarian law has been the subject of extensive discussions over the last 40 years. In particular, the experts on international humanitarian law were quite reluctant to accept the application of human rights law during armed conflicts. They argued that the two systems of rules were assigned to two distinct legal regimes, and close ties did not exist from the outset. Many scholars argue that connections ‘between the two branches of the law are not in any sense natural or necessary’. This may be true for a historical analysis but after the ICJ ‘Advisory Opinion on Nuclear Weapons’ the viewpoints centre upon the applicability of human rights law in cases of armed conflicts. The viewpoints of the ICJ reflect the overcoming of the rift between the two branches of the law, which was, in the first place, a consequence of the appearance of non-international armed conflicts after the end of the Second World War. A precondition for the legal regulation of these conflicts was the applicability of human rights law together with international humanitarian law. Regardless, the whole debate is surprising against the background of the ‘openness’ of international humanitarian law articulated by the Martens Clause. According to the clause, in the absence of specific regulations, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of public conscience.
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