The Interplay between International Human Rights Law and International Humanitarian Law During International Criminal Trials

Forthcoming in: Journal of Human Rights & International Legal Discourse (2018)

Amsterdam Law School Research Paper No. 2018-19

Amsterdam Center for International Law No. 2018-05

18 Pages Posted: 9 Jul 2018

See all articles by Rogier Bartels

Rogier Bartels

University of Amsterdam - Amsterdam Center for International Law

Date Written: July 3, 2018

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, as well as humanitarian law rules, which only apply during armed conflicts. For the purposes of international criminal law (ICL), such conduct may therefore qualify as both a crime against humanity and a war crime, which are systematic or widespread violations of specific human rights and serious violations of IHL, respectively. The present contribution discusses the interplay between the crimes against humanity and war crimes regimes, including the impact of the existence of an armed conflict on the status of alleged victims of crimes against humanity. It further highlights the risk that certain acts that form part of military operations in times of armed conflict may be qualified as crimes against humanity even though they are not contrary to IHL. The author concludes that crimes against humanity and war crimes have to be considered with care, and kept separate when necessary, in order to avoid any negative impact on the development of IHL and/or IHRL, and to safeguard the rights of the accused under ICL.

Keywords: International humanitarian law, international human rights law, war crimes, crimes against humanity, international criminal law, International Criminal Tribunal for the former Yugoslavia, International Criminal Court

JEL Classification: K33

Suggested Citation

Bartels, Rogier, The Interplay between International Human Rights Law and International Humanitarian Law During International Criminal Trials (July 3, 2018). Forthcoming in: Journal of Human Rights & International Legal Discourse (2018) , Amsterdam Law School Research Paper No. 2018-19, Amsterdam Center for International Law No. 2018-05, Available at SSRN: https://ssrn.com/abstract=3207194 or http://dx.doi.org/10.2139/ssrn.3207194

Rogier Bartels (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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