Lex Specialis and Lex Superior: A Re-Examination of the Intersection of International Human Rights Law and International Humanitarian Law

Abstract

While it is understandable why the I.C.J. reached the conclusion that the appropriate resolution to perceived conflicts between IHRL and IHL would be the application of the doctrine lex specialis, this legal doctrine has led to confusion regarding the universality of IHRL and undermined the fundamental nature of human rights. As an alternative, the I.C.J. should have simply extended the belligerents’ privilege to IHRL when dealing with situations of armed conflict, and allowed IHRL to apply in cooperation with IHL. The extension of the belligerent’s privilege to IHL would actually strengthen both regimes as they co-exist without conflict, simply overlapping as criminal and civil law do in a national legal structure. The application of the belligerents’ privilege to IHRL would tend to further deter violations of IHL, as any such violation would void the immunity otherwise provided to a lawful combatant under both legal regimes. As actual prosecutions under IHL are rare and reserved for only the most extreme situation, the ability to bring suit under IHRL would require stricter adherence to IHL in order to avoid the civil suits, which may be more common. Thus, applying the belligerents’ privilege to IHRL while maintaining the universality of IHRL under a theory of lex superior provides a more elegant and legally consistent solution when contrasted with the confusion generated through assigning IHL the mantle of lex specialis to supplant IHRL in situations of armed conflict.

Keywords: Law of War, IHL, International Human Rights Law, IHRL, Lex Specialis, Lex Superior, belligerent’s privilege