The convergence and divergence of International Humanitarian Law and International Human Rights Law

Abstract

In this minithesis, I demonstrate that International Humanitarian Law and International Human Rights Law are two distinct but related fields of law. First, the examination deals with the instance that the aim of both branches of law, the protection of human rights, is common, but the approach to reach this aim is different. In this regard, I show numerous points of divergence of both branches of law which have their origin in the fundamentally different historical developments of International Humanitarian Law and International Human Rights Law. I give the main attention to the application of both sets of law, whereby the contractions and legal gaps of the protection of human rights become apparent. The proposals dealing with the solution of these issues are discussed. I argue that a new legal instrument for a comprehensive and compatible protection of human rights is necessary, especially in times of internal strife. Regarding the question as to whether International Humanitarian Law or International Human Rights Law should apply if both branches are applicable, I take the view to apply the roman principle of law lex specialis derogat legi generali in such a way that the more specific rule whenever they have a specific justification for dealing with specific problems is applicable. Both branches of law do not merge to one, but they converge to a harmonious relationship, where they complement each other and provide the highest protection of human rights.