The latest post in the joint blog series on International Law and Armed Conflict was posted yesterday on Intercross (the blog of the ICRC). The post is by Brigadier Gen (Rtd) Ken Watkin QC, former Judge Advocate General (i.e the head legal adviser) in the Canadian Armed Forces and former Stockton Professor of International Law at the United States Naval War College. Ken’s post is on the overlap between international humanitarian law and international human rights law. He starts by saying that:
It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.
The requirement to consider human rights during contemporary military operations arises in a number of ways. Often it occurs in the context of the use of force, particularly when military forces interface with civilians who are not direct participants in hostilities. Operations can involve the detention of insurgents, terrorists, and persons providing indirect support to organized armed groups; the quelling of civil disorder and unrest; and the arrest of members of criminal organizations taking advantage of the general disorder often associated with armed conflict. These situations can arise during inter-State conflict (i.e. occupation), as well as comprise a significant component of counterinsurgency and counterterrorism operations.
The full post is available on Intercross here