Abstract
The protection regimes of international human rights law (IHRL) and international humanitarian law (IHL) partially overlap. Certain unwanted conduct may therefore violate both human rights norms, which – subject to derogation – apply at all times, and humanitarian law rules, which only apply during armed conflicts. Under international criminal law, such conduct may therefore amount to both a crime against humanity and a war crime. The present contribution briefly sets out the role of human rights law in safeguarding the rights of accused persons before international criminal courts and tribunals, and thereafter analyses the impact of the interplay between IHRL and IHL on the application of the crimes against humanity and war crimes regimes. The author highlights problems that may arise in cases of crimes against humanity charges for conduct that took place during an international or non-international armed conflict, and stresses the need to keep the two regimes separate and ensure a good understanding of IHL, also in cases where – as a result of prosecutorial discretion – no war crimes are charged.
This chapter is an updated and considerably expanded version of Rogier Bartels, “The Interplay between International Human Rights Law and International Humanitarian Law during International Criminal Trials,” 12 (2018) Journal of Human Rights & International Legal Discourse, pp. 44-61.
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Notes
- 1.
The ICTY, ICTR, and ICC statutes, for example, refer explicitly to the Geneva Conventions of 1949 (in Article 2 of the ICTY Statute, Article 4 of the ICTR Statute and Article 8(2)(a) and (c) of the Rome Statute, respectively) and further use the phrases “violations of the laws and customs of war” and “serious violations of the laws and customs applicable in [international armed conflict/armed conflicts not of an international character]” (see Articles 3 of the ICTY Statute, and 8(2)(b) and (e) of the Rome Statute, respectively). For some of the war crimes included in the Rome Statute, the language, despite often being somewhat archaic, was taken verbatim from, e.g., the Hague Regulations annexed to the Hague Convention (IV) respecting the Laws and Customs of War on Land of 1907. For example, Article 8(2)(b)(vi), (xi), (xii), (xiii), (xiv), and (xv) take their wording from Article 23(c), (b), (d), (f), and (h), respectively, of the Hague Regulations, and Article 8(2)(b)(xvi) repeats the wording of Article 28 of the Hague Regulations.
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Bartels, R. (2022). The Interplay Between International Humanitarian and Human Rights Law When Applied During International Criminal Trials. In: Rogers, D. (eds) Human Rights in War. International Human Rights. Springer, Singapore. https://doi.org/10.1007/978-981-16-2116-1_8
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