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Lex Specialis: Oversimplifying A More Complex and Multifaceted Relationship?

Published online by Cambridge University Press:  04 July 2014

Nancie Prud'homme
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Abstract

From the adoption of the United Nations' Charter, the interplay between international human rights law and international humanitarian law has been subject to many questions to which scholars, judges and institutions still struggle to provide a clear answer. At present, there are a number of divergent stances on the parallel application of the disciplines, but they are generally elusive as to their exact methodology and supporting legal basis. This article argues that a well-coordinated application of international humanitarian law and international human rights law is vital to ensuring adequate protection during armed conflict and the effective implementation of the legal frameworks. It examines the articulation of the relationship between international humanitarian law and international human rights law through the lex specialis model. Considering the theory of lex specialis, this article questions the widely accepted view that this theoretical model, based on the specificity and generality of the law, can clarify the interplay and facilitate the co-application of international human rights law and international humanitarian law. In light of this, it is argued that a new means is needed to clarify the interplay between the disciplines. This article advocates the substitution of the lex specialis principle and development of a more specific methodology to resolve issues linked with the concurrent jurisdiction of the disciplines. It suggests that the theory of lex specialis yields to a different theoretical model based on multiple pre-determined criteria that balance the reality of conflict with the respect of humanity and protection of individuals.

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Research Article
Information
Israel Law Review , Volume 40 , Issue 2 , Summer 2007 , pp. 356 - 395
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

PhD Candidate, Irish Centre for Human Rights, National University of Ireland, Galway; Visiting Research Associate, Minerva Center for Human Rights, Hebrew University of Jerusalem.

References

1 Charter of the United Nations, art. 1 (3), 26 June 1945, Can. T.S. 1945 No.7.

2 Are human rights and IHL related? Is there an affiliation, a mutual attraction between these two branches of international law? In other words, are they living in symbiosis penetrating each other mutually? Or else, are they forming an antithetical couple? Wembou, Michel-Cyr Djiena & Fall, Daouda, Le droit international humanitaire: Théories et réalités africaines 62 (2000)Google Scholar.

3 For a discussion on that issue see Rona, Gabor, Interesting Times for International Humanitarian Law: Challenges from the “War on Terror,” 27 Fletcher F. World Aff. 55 (2003)Google Scholar.

4 See, e.g., Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantanamo, March 10, 2006, available at http://www.usmission.ch/Press2006/USFinalReplytoGITMOreport2006.pdf (last visited May 30, 2007); Oral Statements by the United States Delegation to the Committee against Torture, May 8, 2006, available at http://www.usmission.ch/Press2006/CAT-May8.pdf (last visited May 30, 2007); U.S. Statement on the Draft Convention on Enforced Disappearances, June 27, 2006, available at http://www.usmission.ch/Press2006/0627U.S.StatementonForcedDisappearances.html (last visited May 30, 2007).

5 Ben-Naftali, Orna & Michaeli, Keren R., We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int'l L.J. 233, 254 (2003)Google Scholar.

6 International Committee of the Red Cross, Summary Report, XVIIth Round Table on Current Problems on International Humanitarian Law, International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence, November 2003, at 8.

7 Vinuesa, Raúl Emilio, Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law, 1 Y. B. Int'l Human. L. 69, 69–70 (1998)CrossRefGoogle Scholar.

8 The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) [hereinafter Nuclear Weapons case].

9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9) [hereinafter Wall case].

10 ILC Yearbook (1949-I), 263-264, para 20. See also 224-225.

11 Those fundamental principles are humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. The origin of those principles dates to 1875 and have all been formally incorporated in the Preamble of the Statutes of the International Red Cross and Red Crescent Movement in 1986. For more detail on this topic, see International Committee of the Red Cross, The Fundamental Principles of the Red Cross and Red Crescent (1996)Google Scholar.

12 Kolb, Robert, The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 324 Int'l Rev. Red Cross 409 (1998), available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JPG2 CrossRefGoogle Scholar (last visited May 30, 2007).

13 For more information on this separatist approach, see, e.g., Draper, G.I.A.D., The Relationship between the Human Rights Regime and the Law of Armed Conflict, 1 Isr. Y.B. Hum. Rts. 191 (1971)Google Scholar, reprinted in Reflections on Law and Armed Conflicts: The Selected Works on the Laws of War by the Late Professor Colonel G.I.A.D. Draper, OBE (Meyer, Michael A. & McCoubrey, Hilaire eds., 1998)Google Scholar; Wembou & Fall, supra note 2, at 66-67; Espiell, Héctor Gros, Human Rights: Concept and Standards, in Humanitarian Law and Human Rights 345, 352 (Symonides, Janusz ed., 2000)Google Scholar; Vinuesa, supra note 7, at 70; Schindler, Dietrich, The International Committee of the Red Cross and Human Rights, 208 Int'l Rev. Red Cross 3 (1979)CrossRefGoogle Scholar.

14 These protected persons are the wounded, sick, and shipwrecked members of the armed forces, the/prisoners of war and civilians. Geneva Convention (I) relative to the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention (II) relative to the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287.

15 The Secretary-General, Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, ¶ 25, UN Doc. A/8052 (1970).

16 In that respect, G.I.A.D. Draper described the objective of international humanitarian law as: “How to kill your fellow human beings in a nice way.” Draper, supra note 13.

17 Eide, Asbjorn, The Laws of War and Human Rights-Differences and Convergences, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 675, 681 (Swinarski, Christophe ed., 1984)Google Scholar.

18 Meron, Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239, 240 (2000)CrossRefGoogle Scholar.

19 UN Doc. S/RES/237 (1967).

20 International Conference on Human Rights, April 22-May 13, 1968, Proclamation of Tehran, Preamble, UN Doc. A/CONF. 32/41 (1968).

21 See, e.g., Doswald-Beck, Louise & Vité, Sylvain, International Humanitarian Law and Human Rights Law, 293 Int'l Rev. Red Cross 94 (1993), available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JMRT CrossRefGoogle Scholar (last visited June 13, 2007). They note that the Teheran Conference was “[t]he true turning point, when humanitarian law and human rights gradually began to draw closer.”

22 See the Proclamation of Tehran, supra note 20; International Conference on Human Rights, April 22-May 13, 1968, Human Rights in Armed Conflicts, Resolution XXIII (May 12, 1968).

23 Since 1968 the United Nations General Assembly has adopted several documents on the respect for human rights during armed conflict, and included this topic to its agenda every year since the Teheran Conference. See, e.g., Respect for Human Rights in Armed Conflicts, GA Res. 2444 (Dec. 19, 1968); Respect for Human Rights in Armed Conflicts, GA Res. 2597 (XXIV)(Dec. 16, 1969); Respect for Human Rights in Armed Conflicts, GA Res. 2677 (XXV)(Dec. 9, 1970).

24 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998), at para. 183.

25 Respect for Human Rights in Armed Conflicts, supra note 15, at ¶ 25.

26 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 (Dec. 10, 1948).

27 For references to human rights and the Universal Declaration of Human Rights in the Geneva Conventions see, e.g., 3 de Prieux, Jean, Commentary on the Geneva Conventions of 12 August 1949 (1960)Google Scholar, art. 99; 4 Uhler, Oscar & Coursier, Henri, Commentary on the Geneva Conventions of 12 August 1949 (1958)Google Scholar, arts. 8, 27, 54, 71, 79, 80, 101.

28 See Geneva Conventions, supra note 14, Common Article 3. See also Gros Espiell supra note 13, at 345-346; Doswald-Beck & Vité, supra note 21.

29 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609.

30 Id. Protocol I, art. 1(4).

31 For references to human rights in the Additional Protocols see, e.g., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Sandoz, Yves, Swinarski, Christophe & Zimmerman, Bruno, eds., 1987)Google Scholar; Protocol I, supra note 29, at arts. 1, 10, 11, 49, 75, 77, 83, 88, & 90; Protocol II, supra note 29, Part II (humane treatment) & Part IV (civilian population), arts. 4, 18, & 19.

32 Meron, Theodor, The Protection of the Human Person under Human Rights Law and Humanitarian Law, 91/1 Un Bulletin of Human Rights 36–37 (1992)Google Scholar.

33 For more detail on the substantive similarities between the disciplines, see Doswald-Beck & Vité, supra note 21 and Kolb, supra note 12. See also Kellenberger, Jakob, Official Statement: Protection through Complementarity of the Law, 2003, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList575/D75203C5C3CFB78CC1256DA300427813 Google Scholar (last visited June 13, 2007). Therein Kellenberger discusses international humanitarian norms de facto protecting human rights.

34 The European Convention for Human Rights provides that no derogation from the right to life is permitted “except in respect of deaths resulting from lawful acts of war.” Similarly, the International Covenant on Civil and Political Rights and the American Convention on Human Rights assert that: “No one shall be arbitrarily deprived of his life.” European Convention on the Protection of Human Rights and Fundamental Freedoms, art. 15(2), Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR]; American Convention on Human Rights, art 4(1), Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR]; International Covenant on Civil and Political Rights, art. 6(1), Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

35 ECHR, supra note 34, at art. 15(1); ACHR, supra note 34, at art. 27(1); ICCPR, supra note 34, at art. 4(1).

36 See, e.g., Meron, Theodor, Note and Comment: On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 11 Am. J. Int'l L. 589 (1983)CrossRefGoogle Scholar. Regarding the gaps of international human rights and humanitarian law during non-international armed conflicts see, e.g., Freeman, Mark, International Law and Internal Armed Conflicts: Clarifying the Interplay between Human Rights and Humanitarian Protections, J. Human. Assist. (2000), available at http://www.jha.ac/articles/a059.htm Google Scholar (last visited May 1, 2007).

37 In such circumstances, the only protection available is that of Common Article 3 to the four Geneva Conventions.

38 Zegveld, Liesbeth, Remedies for Victims of Violations of International Humanitarian Law, 851 Int'l Rev. Red Cross 505, 515–520 (2003)Google Scholar; Cerna, Christina M., Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies, in Implementation of International Humanitarian Law 31 (Kalshoven, Fritz & Sandoz, Yves eds., 1989)Google Scholar; Martin, Fanny, Application du droit international humanitaire par la Cour interaméricaine des droits de l'homme, 844 Int'l Rev. Red Cross 1037 (2001)Google Scholar; O'Donnell, Daniel, Trends in the Application of International Humanitarian Law by the United Nations Human Rights Mechanisms, 324 Int'l Rev. Red Cross 481 (1998)CrossRefGoogle Scholar; Ramcharan, Bertrand, The United Nations High Commissioner for Human Rights and International Humanitarian Law, HPCR (2005)Google Scholar.

39 Mack, Michelle L., Compliance with International Humanitarian Law by Non-State Actors in Non-International Armed Conflicts, HPCR (2003)Google Scholar. See also Tomuschat, Christian, The Applicability of Human Rights Law to Insurgent Movements, in Crisis Management and Humanitarian Protection, Festschrift für Dieter Fleck 573–591 (Fischer, Horst et al. eds., 2004)Google Scholar.

40 For a more thorough examination of the lex specialis principle see, e.g., Pauwelyn, Joost, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law 385–439 (2003)CrossRefGoogle Scholar; Lindroos, Anja, Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis, 74 Nordic J. Int'l L. 27 (2005)CrossRefGoogle Scholar; Martti Koskenniemi, Study on the Function and Scope of the Lex Specialis Rule and the Question of ‘Self-Contained Regimes,’ International Law Commission, UN Doc. ILC(LVI)/SG/FIL/CRD. 1 and Add. 1 (2004).

41 Emmerich de Vattel, The Law of Nations; or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, book II, ch. XVII, paras. 311, 316 (1793). See also Hugo Grotius, De Jure belli ac pacis, Libri Tres, book II, ch. 16, Sect. XXIX:

When there is any accidental collision between one part of a written document and another, Cicero, in the second book of his treatise ON INVENTION, has given rules for deciding which of them ought to have the preference. …Among those treaties, which … are equal, the preference is given to such as are more particular, and approach nearer to the point in question. For where particulars are stated, the case is clearer, and requires fewer exceptions than general rules do.

42 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter the Vienna Convention].

43 For more details, see Lindroos, supra note 40, at 40-41:

The lack of a hierarchy and institutional structures may also limit the application of lex specialis in another way. There are a variety of rules of interpretation and other maxims that may be applied in conflict resolution, such as lex prior, lex posterior, autonomous operation, and legislative intent, a contrario, acquiescence, contra proferentem, ejusdem generis, and expressio unius est exclusio alterius. Priority may thus be established in a variety of ways. It will depend on the particular circumstances of the case which principle will be given priority. The relationship between such principles, however, remains particularly unclear in international law. And as Jenks points out, “no particular principle or rule can be regarded as of absolute validity.” In other words, these other principles may take precedence over lex specialis, or they may be applied concurrently.

See also Koskenniemi, supra note 40, at 5 n.8. Therein, it has been said asserted that in fact the rule stand amongst the general principles of international law.

44 For examples on the application of lex specialis in international law see Pauwelyn, supra note 40; Lindroos, supra note 40, at 48-64.

45 Pauwelyn, supra note 40, at 388.

46 Koskenniemi, supra note 40, at 4.

47 See Vattel, supra note 41 and accompanying text.

48 Pauwelyn, supra note 40, at 385.

49 Lindroos, supra note 40, at 46.

50 Pauwelyn, supra note 40, at 410. See also Koskenniemi, supra note 40, at 4. Koskenniemi is more reluctant to affirm that the general and specific norms accumulate. Rather he writes: “In both cases—that is, either as an application of or an exception to the general law—the point of the lex specialis rule is to indicate which rule should be applied. In both cases, the special, as it were, steps in to replace the general.”

51 Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, ¶ 28, UN Doc. E/CN.4/2005/103 (Feb. 7, 2005).

52 For examples of cases dealing with international humanitarian law or the application of human rights during armed conflict see, e.g., Abresch, William, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya, 16 Eur. J. Int'l L. 741 (2005)CrossRefGoogle Scholar; Reidy, Aisling, The Approach of the European Commission and Court of Human Rights to International Humanitarian Law, 324 Int'l Rev. Red Cross 513 (1998)CrossRefGoogle Scholar; Martin, supra note 38; Zegveld, Liesbeth, The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case, 324 Int'l Rev. Red Cross 505 (1998)CrossRefGoogle Scholar. See also Human Rights Committee, General Comment No. 31 [80]: Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 10 UN Doc. CCPR/C/74/CRP.4/Rev.6 (Apr. 21, 2004) [hereinafter General Comment No. 31]; Human Rights Committee, General Comment No. 29: States of Emergency (article 4), UN Doc. CCPR/C/21/Rev. 1/Add. 11 (July 24, 2001).

53 Nuclear Weapons case, supra note 8.

54 Id. at para. 24.

55 Id.

56 Id. at para. 25.

57 Dennis, Michael J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 Am. J. Int'l L. 119, 139, 141 (2005)CrossRefGoogle Scholar.

58 Id. at 141.

59 Doswald-Beck, Louise, International Humanitarian Law and the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 316 Int'l Rev. Red Cross 35 (1997)Google Scholar. See also, e.g., International Committee of the Red Cross, supra note 6, at 9:

[S]everal participants pointed out that [the] reasoning [of the ICJ]—though perfectly consistent for interpreting the precise content of the right to life—could not necessarily be generalised to all relations between IHL and human rights law. On the contrary, as human rights law is more precise than IHL in certain domains, the relation of interpretation must also be able to operate in the other direction.

60 Pauwelyn, supra note 40, at 410.

61 Ben-Naftali, Orna & Shany, Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17, 57 (2003)Google Scholar.

62 See also, e.g., Stephens, Dale, Human Rights and Armed Conflict-The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, 4 Yale H.R. & Dev. L. J. 1, 15 (2001)Google Scholar. Stephens argues that, relying repeatedly on the fundamental principles and consideration of humanity to support their conclusions, the International Court of Justice to some extent interpreted international humanitarian law in light of international human rights law:

Though the Court formally maintained the priority of the law of armed conflict, it interpreted that law in terms of the underlying principles of humanity. This emphasis elevated the humanitarian aspects and priorities of the law of armed conflict and ensured that these “weighted” humanitarian aspects must be considered when determining the legitimacy of military actions. In this way, the Court understands that the right to life envisaged by Article 6 applies as a non-derogable right and is to be interpreted only in accordance with the status quo of the prevailing law of armed conflict. Hence, the Court develops its reasoning by re-interpreting the law of armed conflict with a new-found emphasis on promoting humanitarian considerations.

63 Wall case, supra note 9.

64 Implementation of the International Covenant on Economic, Social and Cultural Rights, Second Periodic Reports Submitted by States Parties under articles 16 and 17 of the Covenant, Addendum, Israel, ¶ 5-8, UN Doc. E/1990/6/Add.32 (Oct. 16, 2001).

65 Id. at para. 102 citing the Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, Annex I, ¶ 4, UN Doc. A/ES-10/248 (Nov. 24, 2003):

Israel denies that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which it has signed, are applicable to the occupied Palestinian territory. It asserts that humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace.

See Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Second Periodic Report, Addendum, Israel, ¶ 8, UN Doc. CCPR/C/ISR/2001/2 (Dec. 4, 2001). See also Committee on the Rights of the Child, Summary Record of the 829th Meeting, ¶ 39-42, UN Doc. CRC/C/SR.829 (Oct. 2, 2002). Therein Israel also rejects the applicability of the Convention on the Rights of the Child to the West Bank and the Gaza Strip. See Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

66 Id. at ¶ 106.

67 See supra note 56 and accompanying text.

68 Wall case, supra note 9, at para. 106.

69 Quenivet, Noelle, The ICJ Advisory Opinion on the Legal Consequences ofthe Construction of the Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law, 2004, available at http://www.ruhr-uni-bochum.de/ifhv/publications/bofaxe/x283E.pdf Google Scholar (last visited June 26, 2007).

70 Dennis, supra note 57, at 133.

71 Meron, supra note 18, at 266.

72 As noted earlier in this section, the Opinion was on the one hand interpreted as providing broad-if not total- primacy of international humanitarian law over international human rights law. In contrast, it was said that, following the Opinion, the lex specialis nature could be afforded to either international human rights or humanitarian law depending on the context, and that each field of law should be interpreted in light of the other.

73 Lindroos, supra note 40, at 41.

74 Id. at 28.

75 Legal literature also expressed doubts about the possibility of using lex specialis broadly to discard a legal framework in favor of another, as opposed to evaluating the lex specialis and lex general is in specific contexts and about specific norms:

[L]ex specialis is in some sense a contextual principle. It is difficult to use when determining conflicts between two normative orders in abstracto, and is, instead, more suited to the determination of relations between two norms in a concrete case.

[A]ttention needs to be drawn to the technical nature of lex specialis. It is a rule where contextual sensitivity is given to a special rule in particular circumstances. An abstract determination of an entire area of law as being more specific towards another area of law is not, in effect, realistic. Therefore, the application of lex specialis to certain types of conflicts […] is limited.

Lindroos, id. at 42 and 44 respectively.

76 Id. at 31.

77 Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict, 860 Int'l Rev. Red Cross 737, 746–750 (2005)Google Scholar.

78 Id. at 751-753.

79 University Centre for International Humanitarian Law, Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict, July 24-25, 2004, Proceedings of the Expert Meeting, available at http://www.cudih.org/communication/communication_colloque_rapport04.pdf (last visited July 12, 2007).

80 Lindroos, supra note 40, at 48. See also id. at 44:

The maxim of lex specialis does not provide any criteria to guide the decision whether one area of law is generally more important than another. And indeed, no tribunal seems to have attempted application of the doctrine to that effect… Thus, the maxim remains a juridical assumption that we may give priority to a special rule when a relationship exists between the special and the general. It is not a substantive rule of international law that might show which rule is special in relation to a more general rule.

81 Id. a t 65-66.

82 Id. at 64- 65. See also id. at 42:

As the maxim is a mechanic principle without a clear content it does not provide guidance in. This is the second difficulty faced in the application of lex specialis to different normative orders. Giving priority to a special norm within the system of unclear norm relations in which a decision cannot rely on such relations, the decision actually relies on political or other considerations. Whether environmental protection should be given higher priority than trade norms or vice versa is a highly value-based decision. Such decisions are political choices. Basing a decision only on a juridical logic such as lex specialis is rarely possible in the international legal system. In this connection it is important to note that, as lex specialis lacks a substantive content to direct such determinations, the decision-making process may entirely depend on considerations outside the scope of the maxim. Such doctrines and other wide principles may, then, be easily exploited in legitimising decisions which they have not in effect provided any guidance to.

83 General Comment No. 31, supra note 52, at ¶ 11. See also General Comment No. 29, supra note 52, at ¶¶ 3, 9, 11, 16.

84 Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116 (Dec. 19), at para. 216 [hereinafter DRC v. Uganda].

85 Kammerhofer, Jörg, Unearthing Structural Uncertainty through Neo-Kelsenian Consistency: Conflicts of Norms in International Law, 7 (2005), available at http://www.esil-sedi.org/francais/pdf/Kammerhofer.pdf Google Scholar (last visited June 17, 2007). For the reference to the lex specialis principle in the Wall case see supra note 68 and accompanying text.

86 Kammerhofer, id. at 1-2.

87 The material proposed hereafter is the first sketches of a wider project on the prospective avenues for the articulation of the parallel application of international human rights and international humanitarian law. In the coming months this topic will be developed in the ambit of this author doctoral thesis see Prud'homme, Nancie, International Humanitarian Law and International Human Rights Law: Securing Strong and Coherent Partnership, (forthcoming, 2008) (Ph.D thesis, National University of Ireland, Galway)Google Scholar (on file with the author).

88 Robertson, Arthur H., Humanitarian Law and Human Rights, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 801 (Swinarski, Christophe ed., 1984)Google Scholar.

89 Pictet, Jean, Development and Principles of International Humanitarian Law 3 (Nijhoff, 1985)Google Scholar.

90 See, e.g., Cerna, supra note 38; Eide, supra note 17; Vinuesa, supra note 7; Meron, supra note 18; Meron, supra note 36; Meron, Theodor, Human Rights in Internalc Strife: Their International Protection ch. 1 (1987)Google Scholar; Quentin-Baxter, Robert, Human Rights and Humanitarian Law-Confluence or Conflict?, 9 Austl. Y. B. Int'l L. 94 (1975)Google Scholar.

91 Robertson, supra note 88, at 800-801.

92 Kretzmer, David, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 Eur. J. Int'l L. 171, 171 (2005)CrossRefGoogle Scholar. See also Ben-Naftali & Michaeli, supra note 5; Ben-Naftali & Shany, supra note 61.

93 Watkin, Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int'l L. 1, 34 (2004)CrossRefGoogle Scholar. For other examples of authors supporting the harmonization of international humanitarian law and international human rights law see Heintze, Hans-Joachim, On the Relationship between Human Rights law Protection and International Humanitarian Law, 856 Int'l Rev. Red Cross 789 (2004)CrossRefGoogle Scholar; Martin, Francisco Forrest, Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict, 64 Sask. L. Rev. 347 (2001)Google Scholar; Martin, supra note 38; Stephens, supra note 62.

94 See supra, Section V.

95 For the Nuclear Weapons case, see supra note 56 and accompanying text. For the Wall case, see supra note 68 and accompanying text.

96 University Centre for International Humanitarian Law, supra note 79, at 45.

97 Ben-Naftali & Shany, supra note 61, at 56.

98 Background Paper by Louise Doswald-Beck in Proceedings of the Expert Meeting, supra note 79, at 9.

99 The first assumptions for this section and the premises on which to construe what is called here the “pragmatic theory of harmonization” emerged from a presentation delivered by David Kretzmer in May 2005. Therein Kretzmer proposed a unique outlook on the articulation of the relationship between international humanitarian law and international human rights law, based on three approaches including the intensity of violence. Kretzmer, David, The Relationship between the 1HL and Human Rights Law, in light of the ICRC Report on Customary Law, Presentation given in Gal way on May 3, 2005 Google Scholar.

100 Vienna Convention on the Law of Treaties, supra note 42.

101 Id. at art. 31(1).

102 Id. at art, 31 (3)(c).

103 See, e.g., Sands, Philippe, Treaty, Custom and the Cross-fertilization of International Law, 3 Yale Hum. Rts. Dev. L. J. 85 (1998)Google Scholar; McLachlan, Campbell, The Principle of Systemic Integration and Article 31 (3)(c) of the Vienna Convention, 54 I.C.L.Q. 279 (2005)CrossRefGoogle Scholar.

104 International Law Commission, Report of the International Law Commission on the Work of its Fifty-fourth Session (2002). Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-seventh session, prepared by the Secretariat, UN Doc. A/CN.4/529 (2003).

105 International Law Commission, Report on the Work of its Fifty-seventh Session (2005), see especially ch. XI: Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, ¶ 467, UN Doc. A/60/10 (2005). For a discussion on the weaknesses of this principle see ¶ 468-469.

106 Kammerhofer, supra note 85, at 4.

107 Id. at 4.

108 Françoise Hampson & Ibrahim Salama, Working Paper on the Relationship between Human Rights Law and International Humanitarian Law, ¶ 5, UN Doc. E/CN.4/Sub.2/2005/14 (June 21, 2005).