International Humanitarian Law and

The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the international legal discourse. The reconciliation was driven by a humanistic ethos and its purpose was to offer greater protection of the rights to life, liberty and dignity of all individuals under all circumstances. The complementarity of both regimes currently enjoys the status of the new orthodoxy and simultaneously invites critical reflection. This collection of essays accepts the invitation, offering diverse assessments of the merits of taking human rights to the battlefields of the twenty-first century. International Human Rights and Humanitarian Law comprises three parts: part I focuses on the paradigmatic (security based "armed conflict" vs. human rights centered "law enforcement" paradigms) and the normative complexities of the interaction between both regimes in the "fight against terror" and in other, allegedly new, types of wars. Part II discusses the interplay between IHRL and IHL in the context of three specific regimes: belligerent occupation, the European Court of Human Rights, and the protection of cultural heritage. Part III explores the potential fusion of IHL and IHRL into a new paradigm in two areas: post-bellum accountability and compensation to victims of war crimes. The range of issues, multitude of competing norms and narratives, and shifting paradigms explored in this collection, converse with each other. This conversation mirrors the process through which international law - paying deference to political realities while simultaneously seeking to transcend them - charts new pathways to advance its humanizing project.

Orna Ben-Naftali is Professor of International Law and Dean of the Law School, the College of Management Academic Studies in Israel. A graduate of The Law Faculty of Tel-Aviv University, The Fletcher School of Law and Diplomacy, Tufts University and Harvard University, she taught at Brandeis University and at the Fletcher School of Law and Diplomacy, and worked in the Department of Peacekeeping Operations, the United Nations. Ben-Naftali's publications focus on International Humanitarian Law, most particularly, the Law of Belligerent Occupation; International Criminal Law and on the Cultural Study of Law. She is a member of the board of editors of the European Journal of International Law; founding member of the executive board of Concord - the Research Centre for the Interplay between International Norms and Israeli Law, and a member of the executive board of B'tselem - the Israeli Information Centre for Human Rights in the Occupied Territories.

Acknowledgments	p. v
Notes on Contributors	p. xiii
Table of Cases	p. xvii
Table of Legislation	p. xxv
Entrée
Introduction: International Humanitarian Law and International Human Rights Law-Pas de Deux	p. 3
Adagio
Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror	p. 13
The Development of Competing Paradigms	p. 14
The 'law and order' paradigm	p. 14
The 'armed conflict' paradigm	p. 22
The Emergence of a Mixed Paradigm?	p. 24
The co-application of international humanitarian law (IHL) and human rights law	p. 27
The remaining paradigmatic choice	p. 27
Conclusions	p. 32
The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts	p. 34
Introduction	p. 34
The Allegedly 'New' Situations and the Situations for which the Existing Rules were Made	p. 36
The allegedly new situations and the controversies surrounding them	p. 36
The traditional armed conflicts for which international humanitarian law (IHL) was made	p. 45
Some general thoughts on applying the 'old law' and 'new situations'	p. 47
An Attempt to Apply Existing Rules of IHL and of International Human Rights Law (IHRL) to the Allegedly 'New' Situations	p. 50
The applicability of IHL and of IHRL	p. 50
The simultaneous application of IHL and IHRL in general	p. 69
Unresolved problems in armed conflicts not of an international character	p. 78
Conclusion	p. 93
Norm Conflicts, International Humanitarian Law, and Human Rights Law	p. 95
Introduction	p. 95
A Relationship between Norms, not between Regimes	p. 98
Norm Conflict Avoidance and Norm Conflict Resolution	p. 101
Defining norm conflict	p. 101
Methods of norm conflict resolution	p. 103
Methods of norm conflict avoidance	p. 105
Unresolvable norm conflicts	p. 108
Is lex specialis a Rule of Conflict Avoidance or of Conflict Resolution?	p. 113
Areas of Potentially Unresolvable Norm Conflict	p. 116
Preventive detention and judicial review of detention	p. 116
Necessity in targeting	p. 118
Transformative occupation	p. 121
Conclusion	p. 123
Variations
PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies	p. 129
Introduction	p. 129
Anatomy of the Regime	p. 132
General	p. 132
Intrinsic dimensions of the Israeli occupation	p. 135
Extrinsic dimensions of the Israeli occupation	p. 159
The matrix of an illegal occupation	p. 161
The Paths of Law	p. 162
General	p. 162
The interpretive turn: crafting blind spots	p. 163
The policy spin: turning a blind eye	p. 178
Concluding Comments: Eyes Wide Shut	p. 198
The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict	p. 201
Introduction	p. 201
The Relationship between the ECHR and International Humanitarian Law (IHL)	p. 204
The continued application of the ECHR in times of armed conflict	p. 204
The extraterritorial application of the ECHR in times of armed conflict	p. 205
IHL as lex specialis vis-à-vis international human rights law (IHRL)	p. 212
The competence of the European Court of Human Rights to apply IHL	p. 215
The Practice of the European Court of Human Rights in Situations Amounting to Armed Conflicts	p. 218
The existence of an armed conflict	p. 219
The right to life in armed conflict	p. 223
The right to liberty in armed conflict	p. 238
The protection of property and of private and family life during armed conflict	p. 242
Conclusions	p. 245
Cultural Heritage in Human Rights and Humanitarian Law	p. 250
Introduction	p. 250
International Humanitarian Law (IHL) and Cultural Heritage	p. 251
Early developments	p. 252
1899 Hague II and 1907 Hague IV Conventions and Regulations	p. 254
1923 Hague Air Rules	p. 256
1949 Geneva Convention IV and Universal Declaration of Human Rights	p. 257
1977 Additional Protocols I and II to the 1949 Geneva Conventions	p. 262
Specialist Regime for Cultural Heritage: The Hague Framework	p. 266
Roerich Pact and 1935 Washington Treaty	p. 267
1938 OIM Draft Convention and 1939 OIM Declaration	p. 268
1954 Hague Convention, and First and Second Hague Protocols	p. 271
International Criminal Law and Cultural Heritage	p. 280
Violation of the laws and customs of war	p. 281
Crime against humanity of persecution	p. 286
Genocide	p. 291
Concluding Remarks	p. 299
Coda
Are Victims of Serious Violations of International Humanitarian Law Entitled to Compensation?	p. 305
Introduction	p. 305
The Question of the Beneficiaries of the State's Obligation to Pay Compensation under Article 3 of Hague Convention IV (Hague IV) and Additional Protocol I (AP I)	p. 308
Subjects Entitled to Reparation under the Rules of International State Responsibility for Wrongful Acts	p. 311
The (ir)relevance of the Articles on State Responsibility for international wrongful acts	p. 312
The obligation to repair in case of injuries stemming from violations of erga omnes obligations	p. 313
Do Individuals Enjoy Rights under International Humanitarian Law (IHL)?	p. 318
The individuals as holders of primary rights under IHL	p. 318
The individuals as holders of' secondary' rights under IHL	p. 320
How can the relationship of international responsibility of the state towards individuals be enforced?	p. 322
Conclusion	p. 326
Post-conflict Accountability and the Reshaping Human Rights and Humanitarian Law	p. 328
Introduction	p. 328
Post-conflict Hybridity and Accountability	p. 329
Post-conflict hybridity	p. 329
Post-conflict accountability	p. 331
Joined up accountability?	p. 333
Transitional Justice	p. 335
Human rights law	p. 336
Humanitarian law	p. 338
International criminal justice	p. 340
Regime-merge?	p. 341
Institutional innovation	p. 344
Conclusion	p. 348
Accountability of Third Party Actors	p. 348
Human rights law	p. 350
Humanitarian law	p. 352
Regime-merge?	p. 355
Institutional innovation	p. 358
Re-conceiving the Connections	p. 361
Jus post helium	p. 361
Piece-meal reform through norm-creation	p. 363
Embracing legal pluralism and complex accountability	p. 365
Conclusion	p. 367
Index	p. 371
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International Humanitarian Law and International Human Rights Law

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