International Human Rights Law versus International Humanitarian Law in Situations of Armed Conflict

A Critique of Invocation of the Doctrine ‘Lex Specialis Derogat Legi Generali’ with Reference to the Duty to Protect Life

Abstract

This paper examines the interplay between international human rights law and international humanitarian law especially in situations of armed conflict. When this overlap occurs, the general position in international law is that international human rights law shall apply in times of peace as ‘lex generalis’, or general law, while international humanitarian law shall apply in situations of armed conflict as ‘lex specialis’, or special law, thereby displacing or keeping in abeyance general law. The position is reliant on the doctrine ‘lex specialis derogat legi generali’ meaning that special or specific law suspends general law. The paper, therefore, examines the appropriateness of using the doctrine ‘lex specialis derogat legi generali’ in situations of interplay between the two fields of international law, especially when it comes to the question of the sanctity of life. With reference to the duty to protect life, the paper notes that, the doctrine of ‘lex specialis’ does not adequately clarify the coordination which must desirably exist between the two fields of international law, and in any case it places limits on protection of victims. The paper argues, therefore, that, a well-coordinated application of international human rights law and international humanitarian law is vital to ensuring adequate protection of victims during all situations of armed conflict, because the general trend in the world today is to move towards broader protection of victims, and not towards limitation. In conclusion, therefore, the paper advocates for the need to substitute the ‘lex specialis’ doctrine with a more coherent theory which balances the reality of conflict with the respect for humanity and protection of life.