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The Concept of Humanitarian War: the Relationship Between International Humanitarian Law and Human Rights Law Based on the Lex Specialis-solution

Handler, Gabrielle LU (2013) LAGF03 20131
Department of Law
Abstract
International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are two different branches of International Public Law. While the IHL have a very long legal history, dating back many centuries, IHRL is of younger date having its big upswing in the decades after the Second World War.
They have partially different scopes of application and different purposes, but they meet in their joint humanitarian interests. With the growing interest in Human Rights their existence and application in the situation of armed conflict have become more interesting and urgent. The International Court of Justice (ICJ) has considered the relationship between the two bodies of law in three different cases. Each time stating that IHL shall be... (More)
International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are two different branches of International Public Law. While the IHL have a very long legal history, dating back many centuries, IHRL is of younger date having its big upswing in the decades after the Second World War.
They have partially different scopes of application and different purposes, but they meet in their joint humanitarian interests. With the growing interest in Human Rights their existence and application in the situation of armed conflict have become more interesting and urgent. The International Court of Justice (ICJ) has considered the relationship between the two bodies of law in three different cases. Each time stating that IHL shall be considered lex specialis in relationship to IHRL, but that IHRL shall still be applicable in the situation of armed conflict.
To a certain degree the doctrine agrees with the perception of ICJ about the applicability of the lex specialis-solution, most of the scholars however state that there is more to it. The actual wording of the lex specialis-principle is unclear and therefor discussed in the doctrine. The lex specialis-solution has also received other critique: mainly for being too vague and not applied correctly, but also for watering down IHRL and risking the value and position of it in peacetime.
Many other possible solutions have been presented, the once accounted for in this essay is to harmonize the two bodies of law as far as possible, and when it fails turn to lex specialis or to look at each norm separately and try to come to a solution in each case. Both solutions appears to be doable, but not without issues.
The very relationship that have constituted the base for this essay is complex and neither the boundary between the two bodies of law, nor the correct application of the lex specialis-principle in this case is clear. (Less)
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author
Handler, Gabrielle LU
supervisor
organization
course
LAGF03 20131
year
type
M2 - Bachelor Degree
subject
keywords
Public International Law, Human Rights, Humanitarian Law
language
English
id
3800847
date added to LUP
2013-10-18 13:03:34
date last changed
2013-10-18 13:03:34
@misc{3800847,
  abstract     = {International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are two different branches of International Public Law. While the IHL have a very long legal history, dating back many centuries, IHRL is of younger date having its big upswing in the decades after the Second World War. 
	They have partially different scopes of application and different purposes, but they meet in their joint humanitarian interests. With the growing interest in Human Rights their existence and application in the situation of armed conflict have become more interesting and urgent. The International Court of Justice (ICJ) has considered the relationship between the two bodies of law in three different cases. Each time stating that IHL shall be considered lex specialis in relationship to IHRL, but that IHRL shall still be applicable in the situation of armed conflict. 
	To a certain degree the doctrine agrees with the perception of ICJ about the applicability of the lex specialis-solution, most of the scholars however state that there is more to it. The actual wording of the lex specialis-principle is unclear and therefor discussed in the doctrine. The lex specialis-solution has also received other critique: mainly for being too vague and not applied correctly, but also for watering down IHRL and risking the value and position of it in peacetime. 
Many other possible solutions have been presented, the once accounted for in this essay is to harmonize the two bodies of law as far as possible, and when it fails turn to lex specialis or to look at each norm separately and try to come to a solution in each case. Both solutions appears to be doable, but not without issues. 
The very relationship that have constituted the base for this essay is complex and neither the boundary between the two bodies of law, nor the correct application of the lex specialis-principle in this case is clear.},
  author       = {Handler, Gabrielle},
  keyword      = {Public International Law,Human Rights,Humanitarian Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Concept of Humanitarian War: the Relationship Between International Humanitarian Law and Human Rights Law Based on the Lex Specialis-solution},
  year         = {2013},
}