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International Humanitarian Law and International Human Rights Law$
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Orna Ben-Naftali

Print publication date: 2011

Print ISBN-13: 9780191001604

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780191001604.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 26 February 2021

Norm Conflicts, International Humanitarian Law, and Human Rights Law

Norm Conflicts, International Humanitarian Law, and Human Rights Law

(p.95) 4 Norm Conflicts, International Humanitarian Law, and Human Rights Law
International Humanitarian Law and International Human Rights Law

Marko Milanović

Oxford University Press

This chapter rejects this conclusion: the lex specialis maxim ‘must be abandoned as a sort of magical, two-word explanation of the relationship between international humanitarian law (IHL) and international human rights law (IHRL) as it confuses far more than it clarifies’. The discussion of the interaction of particular norms of IHL and IHRL that regulate specific situations advances the following argument: such interaction will frequently result in a norm conflict, for which there are numerous tools for either conflict resolution or avoidance; lex specialis is at best a fairly limited tool of norm conflict avoidance, which cannot be used to describe the relationship between human rights and humanitarian law as a whole; and there are situations in which all legitimate interpretive tools will fail us, where a norm conflict will be both unavoidable and irresolvable due to a fundamental incompatibility in the text, object and purpose, and values protected by the interacting norms, and where the only possible solution to the conflict will be a political one. The chapter identifies three such possible situations of irresolvable antinomy — targeted killings, preventive security detention, and positive obligations during occupation — and discusses them in the light of recent cases.

Keywords:   international humanitarian law, international human rights law, lex specialis maxim, norm conflict

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