Decommissioned? International Humanitarian Law and the Inter-American Human Rights System

Abstract

The relationship between human rights and humanitarian law is a close one, especially in the context of internal armed conflict. Although regulated by humanitarian law, human rights law remains valuable in such conflicts for several reasons. These include the possibility that enforcement mechanisms created by human rights instruments could serve as alternative fora for the enforcement of humanitarian standards. The Inter-American machinery has been particularly active in this area, and this article examines the relationship between human rights and humanitarian law as it has been reflected and developed in the jurisprudence of the Inter-American Commission and Court of Human Rights.

General Principles of Law - The Role of the Judiciary

“…65 By contrast, at least until very recently, the ECtHR has refrained from making any reference to the possibility of inconsistency between the ECHR and international humanitarian law. Nevertheless, as noted by van den Herik and Duffy (2014), p. 15, a more careful look at the Court's approach in applying the relevant norms "brings into question to what extent it really used international humanitarian law as a tool of interpretation of the relevant Convention provisions"; see further Moir (2003). Even when faced with cases involving alleged violations of provisions of the European Convention which had occurred in situations of occupation or armed conflict, the Court made no mention of the relevant observations of the ICJ in the Nuclear Weapons and The Wall Advisory Opinions in its reasoning, and did not even refer to the relevant passages.…”

Can Human Rights Build a Better War?

“…Thus, human rights fills an institutional vacuum in cases where the application of humanitarian law is disputed or unclear (see, e.g., Zegveld 1998: 505). Human rights courts can adjudicate war crimes that might otherwise go unaddressed (see, e.g., Moir 2003). Human rights may supplement IHL with "extra conditions" to be met with respect to the use of force or the protection of noncombatants (see, e.g., Doswald-Beck 2006).…”