Human Rights in Armed Conflict: Law, Practice, Policy

Translated by Rozhin Sarmadi

Published by the Iranian Kurdistan Human Rights Watch (IKHRW)

There appears to be little doubt regarding the application of human rights in armed conflict, yet the precise mechanics of this application have historically been analyzed only in piecemeal fashion. In Human Rights in Armed Conflict: Law, Practice, Policy, Gerd Oberleitner offers a meticulous analysis that raises fundamental questions concerning the overarching purpose, nature, and domain of jus in bello.

The core premise of the book posits that International Human Rights Law (IHRL) influences and progressively transforms International Humanitarian Law (IHL). This dynamic extends far beyond a purely theoretical legal debate; it represents a direct confrontation between the human rights-centered “law enforcement” model and the security-driven paradigm traditional to the law of armed conflict.

Rather than engaging in a prolonged abstract debate over the interaction between IHRL and IHL, or assembling a simple collection of thematic essays, Oberleitner addresses the issue from a accessible, practical standpoint. He examines whether the terminology of IHRL can and should be utilized to articulate matters previously framed strictly as military regulations.

Consequently, Human Rights in Armed Conflict forms part of a growing trajectory accompanied by a notable rise in jurisprudence and academic legal literature. Its publication is not only timely but highly welcome, filling a crucial void in existing literature by re-evaluating the practical implementation of human rights during armed hostilities. In the author’s own framing, the book investigates how human rights influence, breach, transform, or complement IHL, assessing whether human rights policy aligns with or contradicts the objectives of regulating warfare under existing legal frameworks. Ultimately, it evaluates whether IHRL practice, mechanisms, and international institutions play an active role in resolving humanitarian law issues.

The text structures this analysis across five distinct parts, supported by extensive legal academic literature and judicial precedent:

Part I: Introduction and Historical Context

The introduction frames human rights in armed conflict as a foundational issue within political and legal thought, tracing the ideas, trends, and events that historically shaped the laws of war. It demonstrates how these historical norms interconnected with emerging human rights concepts to produce contemporary convergence.

Oberleitner opens with the claim that IHL served as a forerunner and critical source for IHRL, noting that while IHRL in the strict sense emerged in the 1940s, IHL possessed a much longer codification history prior to that decade. Consequently, he reviews IHL from a historical perspective, concluding that a logical discussion regarding the relationship between the two regimes can only apply post-1948. Notably, this section introduces the Martens Clause as an interpretative tool allowing IHL to reference broader human rights standards. The author cites a 1950 case before the Brussels War Council regarding the mistreatment of detained civilians during the German occupation of Belgium, where the court ruled that because such inhumane treatment was not explicitly prohibited under the Hague Regulations, the Martens Clause had to be invoked to fill the gap—thereby drawing upon IHRL.

Part II: The Theoretical Relationship Between the Two Regimes

Part II addresses the theoretical interaction between IHL and IHRL, evaluating three primary approaches:

1. Lex specialis

2. Complementarity

3. Harmonization / Integration

Oberleitner acknowledges that it remains unclear today whether lex specialis functions primarily as a normative interpretation tool or as a mechanism for resolving norm conflicts. Reviewing its application by international bodies, he observes that organizations like the International Committee of the Red Cross (ICRC) apply IHL exclusively or refrain from applying legal regimes altogether, opting instead to provide purely humanitarian services. Although the ICRC supports complementarity between IHL and IHRL, it continues to emphasize their distinct differences and the necessity of applying lex specialis to define their relationship.

Oberleitner’s broader conclusions on this point are exceptionally clarifying. He emphasizes that deriving the “specialized” nature of IHL solely from the existence of an armed conflict merely identifies the temporal scope of the legal regime; arguing that IHL was designed for armed conflict states only that it applies during such conflicts, without clarifying its relationship to other legal frameworks in that context. He maintains that lex specialis is an inadequate tool for articulating this relationship because it fails to offer a predictable framework for the complementary application of IHRL and IHL. In his assessment, the doctrine functions as an “artificial solution to a real problem, serving in practice primarily to uphold IHL exclusivism while keeping human rights at bay.”

While the analysis is incisive, two specific points warrant attention:

• Oberleitner argues that Common Article 3 of the 1949 Geneva Conventions regarding prohibition of hostage-taking is specialis due to lacking a direct counterpart in early human rights law, overlooking the applicability of the International Convention Against the Taking of Hostages.

• Practical examples introduced earlier in the text could have clarified complex theoretical scenarios. For instance, only at the end of Part II is it noted that while IHL may act as lex specialis regarding the right to life in combat, IHRL serves that role regarding judicial guarantees. Earlier references to these specific provisions would have enhanced clarity.

Following his critique of lex specialis, Oberleitner explores an interpretive framework guided by the principle of “maximum protection” via norms most favorable to affected individuals. Consequently, complementarity must be understood as an active mutual interaction and reciprocal influence aimed at achieving this protective objective.

He asserts that during standard armed hostilities, greater IHL rules must apply, whereas in scenarios resembling law enforcement operations (such as occupation settings, peace operations, or administrative detention contexts), IHRL provisions become paramount. However, in concluding Part II, Oberleitner critiques both “exclusivists” and “complementarians” for maintaining a strict divide between the two systems while rejecting deeper structural integration. Acknowledging the technical difficulties of merging IHRL and IHL, he proposes a “human rights-based law of armed conflict”—a unified regime governing all forms of armed conflict structured around IHL, wherein IHRL applies cumulatively to provide foundational normative value and operational guidance.

Part III: Operational Challenges in Real-World Scenarios

Part III investigates concrete operational challenges, including:

• The right to life

• The extraterritorial application of IHRL

• Derogation clauses

• State obligations to respect, protect, and fulfill human rights

Oberleitner proposes a compelling unified framework on the use of force for all situations outside active conduct of hostilities, governed by IHRL in tandem with IHL. Individuals subject to physical violence, arrest, detention, or other actions outside active combat fall under law enforcement-like procedures where IHRL applies appropriately by analogy.

Regarding extraterritorial application, following a review of jurisprudence, he supports applying IHRL without territorial limitations whenever a state exercises effective control over territory or individuals, while acknowledging that competing jurisdictional standards require further harmonization. Turning to occupations, he advocates a “capability-based approach” rooted in the distinction between positive and negative obligations. While state agents can always refrain from negative violations, they may lack the capacity to guarantee positive protection against third-party abuses abroad. Consequently, positive obligations should only be placed on an occupying power to the extent of its reasonable control.

Part IV: The Dynamics of War and Law

Part IV analyzes how structural shifts in warfare and law mutually affect one another, examining IHRL in peace operations and non-international armed conflicts (NIACs). Given that the overwhelming majority of modern conflicts are non-international, a more extensive treatment of NIACs would have provided added value.

Key insights include:

• Intensity of Conflict: Low-intensity NIACs should lean heavily on IHRL, whereas high-intensity combat scenarios require IHL rules.

• Human Rights Obligations of Non-State Armed Groups: The author evaluates theories regarding non-state armed groups (NSAGs), including the concept that an NSAG exercising territorial control functions as a quasi-state entity deriving legitimacy through compliance with international standards—a view Oberleitner ultimately critiques as inapplicable to groups lacking territorial control. He concludes that an NSAG’s capacity to adhere to IHRL must be determined on a case-by-case basis.

• Norm Generation and Ownership: Engaging NSAGs through unilateral declarations, codes of conduct, or deed of commitments (such as those facilitated by Geneva Call) enhances their sense of ownership over legal norms. However, Oberleitner warns against diluting standard IHRL metrics merely to accommodate group compliance, questioning whether self-defined armed group rules can legitimately replace established state-based human rights frameworks.

Part V: Enforcement Mechanisms

The final part examines how international enforcement bodies address IHL issues during armed conflicts. Oberleitner focuses on six primary mechanisms to highlight a core thesis: given the historical deficit of direct enforcement mechanisms within IHL, international human rights bodies must serve as the primary alternative forum.

He analyzes jurisprudence and practice across:

1. The UN Human Rights Council (UNHRC)

2. The Office of the High Commissioner for Human Rights (OHCHR)

3. UN Human Rights Treaty Bodies

4. The Inter-American Commission and Court of Human Rights

5. The European Court of Human Rights (ECtHR)

6. The African Commission on Human and Peoples’ Rights

These institutions represent the most active international bodies capable of providing authoritative guidance, pressuring violators, promoting humanitarian obligations, and ensuring systemic legal coherence. However, the role of non-state actors in these forums remains largely unaddressed. Because these human rights bodies primarily adjudicate state responsibility, the accountability mechanisms for violations committed by armed groups remain an ongoing challenge requiring further legal development.

Conclusion

Human Rights in Armed Conflict: Law, Practice, Policy provides insightful arguments regarding why and how IHRL must be integrated into IHL to yield a robust, protective legal system for victims of armed conflict. While expanded coverage of non-international conflicts would have strengthened the work, Oberleitner’s contribution—as reviewed by Ezequiel Heffes—serves as a vital reminder that the severe humanitarian consequences of modern warfare demand innovative, effective legal protection tools.

Original Source: International Review of the Red Cross (2015), 97 (899), pp. 929–935. © ICRC 2016.