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INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW. Ed by Orna Ben-Naftali Oxford: Oxford University Press (www.oup.com), The Collected Courses of the Academy of European Law vol XIX/1, 2011. xxxv + 388 pp. ISBN 9780191001604. Oxford: Oxford University Press, 2011. £60.

Document Cited in Related
Vincent
DOI10.3366/elr.2012.0097
Date01 January 2012
Published date01 January 2012
Pages140-141

The question of whether international humanitarian law (IHL) and human rights law apply concurrently in situations of armed conflict has been the subject of many heated debates. At present, the prevalent view is that IHL and human rights law apply conjointly but this view gives rise to a host of more specific questions whose practical significance is enormous. The book under review explores these issues from different perspectives and, even if it does not provide an answer to each and every question that it asks, it provides direction and perspective.

The three first chapters explore the normative as well as practical problems relating to the conjoined application of human rights and IHL in the context of “new” paradigms such as the “war on terror”, UN peacekeeping operations, failed states or asymmetric war. Whereas potential conflicts between different norms can be settled by applying the lex specialis principle according to which IHL, being more attuned to the particular circumstances of an armed conflict, takes precedence over human rights law (Sassòli), this principle cannot provide answers to all cases of conflict such as those concerning targeted killings or preventive security detention (Milanović), because these cases give rise to important ideological and political questions about the class of protected values and the scope of their protection. For example, targeted killings of would-be terrorists reveal the tensions between the value of individual human rights and the value of individual and communal security (Shany).

The second part of the book examines issues arising from the co-application of human rights and IHL in the context of specific regimes. With regard to the Occupied Palestinian Territory, it is claimed that the application of both regimes, and the otherwise benevolent demand for more law, results in the perpetuation and normalisation of an illegal situation, whereas the application of the law to individuals serves the interests of the occupying power (Ben-Naftali). The...

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