A norm conflict perspective on the relationship between international humanitarian law and human rights law

Milanović, M. ORCID: https://orcid.org/0000-0003-3880-6096 (2009) A norm conflict perspective on the relationship between international humanitarian law and human rights law. Journal of Conflict & Security Law, 14 (3). pp. 459-483. ISSN 1467-7962 doi: 10.1093/jcsl/krp033

Abstract/Summary

One of the most powerful methods of inducing changes in outcomes governed by international humanitarian law is to add human rights rules and arguments into the equation. This, indeed, is precisely the point of the whole project of linking these two branches of international law. This article explores the relationship between the two bodies of law, and makes several broad propositions. First, that there is a need for a change in perspective, from examining the relationship of the two regimes as such, to the interaction of particular norms that regulate specific situations. Second, that this interaction will frequently result in a norm conflict, and that we have numerous tools at our disposal for either avoiding or resolving these conflicts. Third, that lex specialis is at best a fairly limited tool of norm conflict avoidance, and that it most certainly cannot be used to describe the relationship between human rights and humanitarian law as a whole. Finally, that there are situations where all of our tools will fail us, where a norm conflict will be both unavoidable and unresolvable due to a fundamental incompatibility in the text, object and purpose, and values protected by the interacting norms, and where the only possible solution to the conflict will be a political one. The article identifies three such possible situations of unresolvable antinomy—targeted killings, preventive security detention, and positive obligations during occupation, and addresses recent cases with a norm conflict component, such as Al-Jedda, Behrami, and Al-Saadoon. Though in most cases harmony between human rights and humanitarian law is possible, and indeed desirable, we should not underestimate the practical and political relevance of situations of true norm conflict, which no amount of academic exposition will be able to fix.