Research Handbook on Human Rights and Humanitarian Law
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Research Handbook on Human Rights and Humanitarian Law

Edited by Robert Kolb and Gloria Gaggioli

This fascinating Handbook explores the interplay between international human rights law and international humanitarian law, offering expert analysis on the increasingly complex issues surrounding their application in conflict areas across the world.
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Chapter 11: Specificities of human rights law and international humanitarian law regarding state responsibility

Christian Tomuschat


Both international humanitarian law (hereinafter: IHL) and human rights law (herein- after: HRL) are constituent elements of present-day international law. Thus, one might assume that they are naturally governed by the general principles and rules which make up the conceptual framework of the system of international law as a whole. Yet, regarding the secondary rules that come into play if and when a primary rule of conduct has been breached, it turns out that the modern extension of international law, both ratione personae and ratione materiae, cannot easily be accommodated. All of a sudden, it becomes apparent that international law grew up as inter-State law and that its mechanisms of enforcement were originally framed – or evolved – with a view to accommodating States. Consequently, not only are adjustments necessary; in some instances, the inference cannot be escaped that some of the classic rules are entirely inappropriate in the fields of IHL and HRL. International responsibility is a case in point. Traditionally, it was understood as inter-State responsibility. Accordingly, the rules drawn up by the International Law Commission (hereinafter: ILC) on Responsibility of States for internationally wrongful acts (hereinafter: ARS), taken note of by General Assembly resolution 56/83 of 12 December 2001, dealt exclusively with the international responsibility which a State incurs through unlawful conduct. At that time, a decade ago, it was already a matter of common knowledge that International Organizations (hereinafter: IOs) may also become liable to make reparation if they violate their obligations under international law.

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