Challenges in applying human rights law to armed conflict

International Review of the Red Cross

Volumn 87, Issue 860, 2005, Pages 737-754

  Lubell, Noam ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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EID: 85022882188     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383100184541     Document Type: Article

References (43)

1. Amongst others, see G.I.A.D. Draper, “The relationship between the human rights regime and the laws of armed conflict,” Israel Yearbook on Human Rights, Vol. 1, 1971, p. 191;
2. L. Doswald-Beck and S. Vite, “International humanitarian law and human rights law,” International Review of the Red Cross, No. 293, March-April 1993, p. 94;
3. R.E. Vinuesa, “Interface, correspondence and convergence of human rights and international humanitarian law,” Yearbook of International Humanitarian Law, Vol. 1, T.M.C. Asser Press, The Hague, 1998, pp. 69–110;
4. R. Provost, International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002;
5. H. Heintze, “On the relationship between human rights law protection and international humanitarian law,” International Review of the Red Cross, Vol. 86, No. 856, December 2004, p. 798.
6. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, IC)Reports 1996, para. 25.
7. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004;
8. Human Rights Committee, General Comment 29, States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.l/Add.ll (2001) para. 3;
9. In the words of the Court “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.” ICJ, Advisory Opinion, General Comment 29, States of Emergency, para. 106.
10. See for example some of the arguments raised in M. Dennis, “ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: Application of human rights treaties extraterritorially in times of armed conflict and military occupation,” American fournal of International Law, Vol. 99, 2005, p. 119;
11. For an example of a comprehensive publication devoted to this subject, see F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, Intersentia, Antwerp, 2004.
12. see also Francoise Hampson and Ibrahim Salama, “Working paper on the relationship between human rights law and international humanitarian law,” UN Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2005/14 21 June 2005, paras. 78–92.
13. The occurrence of hostilities after a situation of occupation has been established (as opposed to the hostilities leading up to an occupation), gives rise to a number of problems. Some of these are addressed in N. Lubell, “The ICJ Advisory Opinion and the separation barrier: A troublesome route,” Israel Yearbook on Human Rights, Vol. 35, 2005, pp. 294–299.
14. See M. Scheinin, “Extraterritorial effect of the International Covenant on Civil and Political Rights,” and
15. R. Lawson, “Life after Bankovic: On the extraterritorial application of the European Convention on Human Rights
16. but also D. McGoldrick, “Extraterritorial application of the International Covenant on Civil and Political Rights,” all in: Extraterritorial Application of Human Rights Treaties, (note 9).
17. See presentation by D. Kretzmer, “The law of armed conflict: Problems and prospects,” Chatham House, 18–19 April 2005. Available on, (last visited on 24 January 2006).
18. Berger, Grimes & Jensen (eds.), The US Operational Law Handbook 2004, Chapter 3, Section II.
19. See discussion of this approach in A. Reidy, “The approach of the European Commission and Court of Human Rights to international humanitarian law,” International Review of the Red Cross, No. 324, September 1998, pp. 514–516.
20. Examples of these and others are cited in D. O'Donnell, “Trends in the application of international humanitarian law by United Nations human rights mechanisms,” International Review of the Red Cross, No. 324, September 1998, p. 481.
21. See some of the criticisms raised in the ICRC report on “International humanitarian law and the challenges of contemporary armed conflicts,” 28th International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2003, pp. 59–60.
22. J. Delbruck, “Proportionality,” Encyclopaedia of Public International Law, Vol. 7, Elsevier Science Publishers, 1984, p. 398.
23. L. Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, pp. 193–231;
24. C. Greenwood, “Rights at the frontier: Protecting the individual in time of war,” Law at the Centre: The Institute of Advanced Legal Studies at Fifty, Kluwer, Dordrecht, 1999, p. 288.
25. see C. Greenwood, “International humanitarian law and the Tadic case,” European Journal of International Law, Vol. 7, 1996, p. 265;
26. See also discussion of the right to life in C.K. Boyle, “The concept of arbitrary deprivation of life” in B.G. Ramcharan (ed), The Right to Life in International Law, Nijhoff, Dordrecht, 1985, pp. 221–244; and
27. in D. Kretzmer “Targeted killing of suspected terrorists: Extra-judicial executions or legitimate means of defence?”, European Journal of International Law, Vol. 16, p. 171, pp. 176–183.
28. See also H. Spieker, “Twenty-five years after the adoption of Additional Protocol II: Breakthrough or failure of humanitarian legal protection?”, Yearbook of International Humanitarian Law, Vol. 4, T.M.C. Asser Press, The Hague, 2001, pp. 134–143.
29. “While State armed forces are not considered civilians, practice is not clear as to whether members of armed opposition groups are civilians subject to Rule 6 on loss of protection from attack in the event of direct participation or whether members of such groups are liable to attack as such, independently of the operation of Rule 6,” ICRC study, (note 1), Vol. 1, p. 19 and, in general, pp. 17–24;
30. ICRC study, ICRC study
31. See T. Meron, Human Rights in Internal Strife: Their International Protection, Grotius, Cambridge, 1987, p. 47, and Moir, (note 42), pp. 67–88.
32. Although one view would appear to lead in that direction - see F. F. Martin “Using international human rights law for establishing a unified use of force rule in the law of armed conflict,” Saskatchewan Law Review, Vol. 64, 2001, p. 347;
33. but see responses in J. Paust “Colloquy on the law of armed conflict: The unified use of force and exclusionary rules - The right to life in human rights law and the law of war,” and in L.C. Green “Colloquy on the law of armed conflict: The unified use of force and exclusionary rules - The “unified use of force rule” and the law of armed conflict: A reply to Professor Martin,” both in Saskatchewan Law Review, Vol. 65, 2002, pp. 411 and 427.
34. J. Bond, The Rules of Riot: Internal Conflict and the Law of War, Princeton University Press, Princeton, 1974, p.137.
35. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 31/08/2001. E/C.12/1/Add.69.
36. Jelena Pejic, “The right to food in situations of armed conflict: The legal framework,” International Review of the Red Cross, Vol. 83, No. 844, December 2001, p. 1097;
37. P. Perrin (ed.) Handbook on War and Public Health, 1CRC, Geneva, 1996;
38. I. Taipale (ed.), War or Health: A Reader, Zed Books, London, 2002.
39. Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000).
40. Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health
41. A. Roberts, “Prolonged military occupation: The Israeli-occupied territories 1967–1988,” American Journal of International Law, Vol. 84, 1990, p. 71.
42. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, para. 6.
43. Article 38 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949.