Occupation

K. Watkin – Use of force during occupation: law enforcement and conduct of hostilitiesIn what can be termed an interpretive ‘struggle’, the lex specialis principlehas been said to be ‘descriptively misleading, vague in meaning, and of littlepractical use in application’. 220 One interpretation has been described as broadlyexclusionary in nature, seeing ‘the specialty of IHL operating at a very general level,so that IHL would replace IHRL [international human rights law] altogether intimes of armed conflict’. 221 Attributed to states such as the United States and Israel,this approach has been called ‘radical’. 222 It has been indicated that a more correctinterpretation of lex specialis is one applied on a case-by-case basis to certainindividual rights in situations where there is an actual conflict such that, where anorm cannot be applied without violating another, ‘the special norm of IHL shouldprevail’. 223 However, it is also suggested that what can be used is the lex specialiscompletat legi generali principle, where both branches of the law are appliedsimultaneously, such that human rights norms ‘have to be interpreted in light ofIHL norms’. 224 Reflecting this interpretive uncertainty, Françoise Hampson hasstated, in regard to the lex specialis principle, that ‘[i]t is not clear whether thismeans only that the special prevails over the general, or whether it means that theformer actually displaces the latter’. 225 Another analysis reaches the conclusion thatinternational humanitarian and human rights treaties can ordinarily be reconciled,but that there will be instances where that will not occur, leading to a political choiceas to which of the conflicting norms will be given priority. 226An approach allowing for the application of human rights law, evenwhen IHL applies, has been to interpret lex specialis as a ‘rule governing conflictingnorms’. 227 This interpretation gives ‘precedence to the rule that is most adapted and220 Marko Milanovic, ‘Norm conflicts, international humanitarian law and human rights law’, in Orna Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law, Oxford UniversityPress, Oxford, 2011, p. 124. See also Françoise J. Hampson, ‘The relationship between internationalhumanitarian law and human rights from the perspective of a human rights treaty body’,inInternationalReview of the Red Cross, Vol. 90, No. 871, 2008, p. 562, who writes that ‘[s]ome way needs to be found todevelop a coherent approach to the problem’. See also L. Doswald-Beck, above note 64, pp. 898–900.221 Andrea Gioia, ‘The role of the European Court of Human Rights in monitoring compliance withhumanitarian law in armed conflict’, in O. Ben-Naftali, above note 220, p. 213.222 Ibid.223 Ibid., p. 214.224 Ibid.225 F. J. Hampson, above note 220, p. 558. Hampson goes on to suggest two other possible interpretations:first, that IHL prevails where it contains an express provision that addresses a similar field to that of ahuman rights norm; and, second, that the lex specialis depends upon the issue at stake – if the right is notcovered by IHL then human rights will prevail. See, generally, ibid., pp. 558–562.226 M. Milanovic, above note 220, p. 124.227 See Cordula Droege, ‘Elective affinities? Human rights and humanitarian law’, inInternational Review ofthe Red Cross, Vol. 90, No. 871, 2008, p. 524. The alternate interpretation of the lex specialis rule is basedon the work of Martti Koskenniemi, ‘Study on the function and scope of the lex specialis rule and thequestion of “self contained regimes”’, UN Doc. ILC(LVI)/SG/FIL/CRD.1 and Add. 1, 2004. See also MarcoSassòli, ‘The role of human rights and international humanitarian law in new types of armed conflicts’,inO. Ben-Naftali, above note 220, pp. 34 and 71, where he suggests resolving conflicting norms by favouringthe norm with the broadest application, that with the greatest precision, that having explicit application,and that with the most restrictive application; and Marco Sassòli and Laura M. Olson, ‘The relationshipbetween international humanitarian and human rights law where it matters: admissible killing andinternment of fighters in non-international armed conflicts’,inInternational Review of the Red Cross,Vol.90, No. 871, 2008, pp. 603–604.302