HUMAN RIGHTS LAW AND HUMANITARIAN LAW: BETWEEN COMPLEMENTARITY AND CONTRADICTION

Abstract

International human rights law and international humanitarian law are two specialized areas of the public international law, which exist as distinct legal branches. These legal branches have a different origin and legal basis, but a common humanist ideal, and consequently areas of overlap in practice. Both legal regimes share the responsibility to protect human beings’ rights; Humanitarian law in time of armed conflict, human rights law in peacetime and in wartime as well. Because of this, in practice there is sometimes concurrent application of the legal norms of international human rights law and international humanitarian law. At the same time, there are also differences between these two legal regimes that arise from the different circumstances which are relevant in a state of peace and in state of war. Hence, regarding this relationship, many relevant questions arise: Whether these legal branches are mutually exclusive? Under what circumstances does humanitarian law apply, and how does this differ from the applicability of human rights law? Which are the areas of overlap? What are the practical consequences of the legal issues resulting from parallel application of the two legal frameworks?

This paper is not intended to resolve all these questions, but to make contributions in the ongoing debate by presenting similarities between human rights law and humanitarian law, areas of overlap, and situations of concurrent application. We will also underline the differences which exist in this relationship, especially the differences in the scope of protection guaranteed within the legal norms, the responsibility for breaking the norms, as well as permitted derogations in implementation of the norms. One part of the paper applies the principle lex specialis in cases where one of the legal branches is more specific in a concrete situation.