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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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The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict

The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict

Chapter:
(p.201) 6 The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict
Source:
International Humanitarian Law and International Human Rights Law
Author(s):

Andrea Gioia

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780191001604.003.0006

This chapter focuses on the relationship between the European Convention on Human Rights (ECHR) and international humanitarian law (IHL). The first part of the chapter analyzes the relationship between the ECHR and IHL from a general point of view. Having determined that the ECHR continues to apply in times of armed conflict — both international and non-international — the discussion proceeds to examine the Convention's extraterritorial application, the relationship between the ECHR and IHL, and the competence of the European Court of Human Rights to take IHL into account when applying the Convention in situations amounting to armed conflict. The second part discusses the Court's case-law relating to situations of armed conflict in order to ascertain what role IHL has so far played in the Court's decisions: special reference is made to cases relating to the right to life, to the right to liberty, and to the protection of property. The possible explanations for the Court's marked reluctance to refer to IHL are discussed in this context, while pointing out that generally the Court has not so far adopted decisions squarely contradicting the applicable rules of IHL. The chapter concludes with an implicit plea for the Court to depart from its ‘ivory tower’ attitude towards IHL, so as to contribute to a convergence of the two legal regimes towards a more coherent as well as a more realistic regulation of conduct in armed conflicts in general and in non-international armed conflicts in particular.

Keywords:   international humanitarian law, international human rights law, right to life, armed conflicts, regulation of conduct

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