Rule 99 of the Customary International Humanitarian Law Study and the Relationship Between the Law of Armed Conflict and International Human Rights Law

摘要

"It is submitted that the way in which human rights law and human rights material is used in the Study is legitimate, necessary and conservative," claimed Francoise Hampton, who commented on the fundamental guarantees section of the Study. The approach embodied in Rule 99-applying IHL and IHRL as complementary regimes subject to the lex specialis principle-is indeed now so ingrained as to warrant the label customary by the ICRC. While certain key actors in the international community such as the United States and Israel may prefer to view these two regimes as separate and distinct, it is now beyond argument that the majority of the international community views them as complementary.That being the case, Hampton's submission is at least partially correct: the authors' use of IHRL in the ICRC Study, and particularly with respect to Rule 99, appears to be both legitimate and necessary, and it is certainly understandable given the trend towards complementarity. Whether the authors' use of IHRL in the Study is conservative is a separate question that is perhaps best left for another day and another article.