The 'Crossed Judicial Scrutiny' of the European Court of Human Rights and International Court of Justice: A Plea for Reforms in Order to Enhance Coordination between International Humanitarian Law and International Human Rights Law

Abstract

In recent years, the relationship between International Humanitarian law (IHL) and International Human Rights law (IHRL) has become the subject of increasing debate. These two branches of international law (IL) have very different historical origins and scopes. Notably, IHL applies to situations of armed conflict (AC) and grants a minimum of protection to civilians and combatants in such situations; IHRL applies without limitations to protect individuals’ rights from the States’ abuses. As a consequence of their characteristics, the competence to apply these two IL branches is attributed to different bodies.

However, the boundaries between IHL and IHRL have gradually become less defined. Indeed, situations falling in the scope of application of both these IL branches have significantly increased. Consequently, the necessity for the international courts not specialised in IHRL to take into account this body of law in their judgements, and vice versa for courts not specialised in IHL, became unavoidable. The expansion of the application of IHL and IHRL in “overlap situations”, and the consequent extension of international courts’ scrutiny over areas of IL not previously considered, generated a phenomenon which can be defined as “crossed judicial scrutiny” of international courts.

The international Court of Justice (ICJ) and the European Court of Human Rights (ECtHR) provide a remarkable example of crossed scrutiny, having “expanded” their judicial assessments, respectively, in relation to IHRL and IHL. For instance, in 1996 the ICJ has considered for the first time in the Nuclear Weapons Opinion the applicability of IHRL in the context of AC. In the meantime, in an increasing number of cases, the ECtHR had to confront the Convention applicability in AC with IHL. As a matter of fact, the ICJ and the ECtHR crossed scrutiny have expanded the reciprocal judicial influence of these courts. Nevertheless, due to the lack of clear guidance, the current “crossed” application of IHRL and IHL has generated also significant questions on the relationship between these IL branches. As a result, legal uncertainty has risen as to the outcome of judgements requiring the application of these branches of IL, with a negative impact on the rights’ protection.

This essay will argue that the introduction of more stringent coordination mechanisms of IHL and IHRL is needed to deal with the uncertainty deriving from their “crossed” application by ECtHR and ICJ. Some possible suggestions will be presented towards (i) enhancing legal certainty; (ii) better protection of individuals’ rights, and (iii) introducing clearer guidance to potentially avoid litigation.

Keywords: International Court of Justice, European Court of Human Rights, human rights, International humanitarian law

JEL Classification: K41