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RESEARCH PRODUCT

Human Rights and Changes to the International Legal System. Philosophical Reflections on the (Difficult) Coexistence of International Humanitarian Law and International Human Rights Law

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Chapter 6 analyses the relationship between International human rights law (IHRL) and international humanitarian law (IHL). IHL represents the new version of a part of the old ius gentium, in particular its ius in bello. Nonetheless, IHL excludes ius ad bellum, formerly linked to ius in bello in ius gentium, in continuity with the Just War Theory. The current IHL is characterized by neutrality, impartiality, and humanity in protecting victims. The practice of IHRL – not the abstract doctrine of natural rights – aims to protect human beings in different contexts and against different forms of vulnerability. In this last sense, IHL could be seen as a part of the former in the case of vulnerability caused by war. IHL and IHRL are often indicated as lex specialis (IHL) and lex generalis (IHRL). Three criteria are used to test the relations between them: the sphere of temporal application (IHL in war or emergency; IHRL in any situation, but with possible derogation in some cases), the question of the addressee (states and other possible actors in both cases), and the sphere of subjective application (the person protected: victims for IHL; human beings in a certain context for IHRL). At the end of the day, the differences between them are less important than they appear to be and suggest an aspect of incoherence in terms of respect for the human person as a key principle of the international order.