DEPARTMENTOFDEFENSE LAW OFWARMANUAL JUNE2015

example, governments must refrain from subjecting individuals to arbitrary detention, to
arbitrary deprivation of life, or to cruel, inhuman, or degrading treatment or punishment. 85
As a general matter, human rights treaties have been described as primarily applicable to
the relationship between a State and individuals in peacetime. 86 Some human rights treaties also
provide for derogation from certain provisions in emergency situations. 87
Law of war treaties have been described as chiefly concerned with the conditions
particular to armed conflict and the relationship between a State and nationals of the enemy
State. 88 Law of war treaties generally do not provide for derogation because necessity is not a
basis for derogating from law of war rules. 89
1.6.3.1 Relationship Between Human Rights Treaties and the Law of War. In
some circumstances, the rules in the law of war and the rules in human rights treaties may appear
to conflict; these apparent conflicts may be resolved by the principle that the law of war is the lex
specialis during situations of armed conflict, and, as such, is the controlling body of law with
regard to the conduct of hostilities and the protection of war victims. 90
85 International Covenant on Civil and Political Rights, art. 9(1), Dec. 19, 1966, 999 UNTS 171, 175 (“Everyone has
the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”);
International Covenant on Civil and Political Rights, art. 6(1), Dec. 19, 1966, 999 UNTS 171, 174 (“Every human
being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life.”); International Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 UNTS 171, 175 (“No one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall
be subjected without his free consent to medical or scientific experimentation.”).
86 See, e.g., JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 15 (1975) (“Admittedly,
human rights embody more general principles while the law of armed conflicts is of a specific and exceptional
nature, coming as it does into operation at the very time when the exercise of human rights is prevented or restricted
by war. But the two legal systems are fundamentally different, for humanitarian law is valid only in the case of an
armed conflict while human rights are essentially applicable in peacetime, and contain derogation clauses in case of
conflict. Moreover, human rights govern relations between the State and its own nationals, the law of war those
between the State and enemy nationals.”).
87 See, e.g., International Covenant on Civil and Political Rights, art. 4(1), Dec. 19, 1966, 999 UNTS 171, 174 (“In
time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,
the States Parties to the present Covenant may take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.”).
88 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 9 (102) (1999) (“Human rights law is designed to operate primarily in
normal peacetime conditions, and within the framework of the legal relationship between a state and its citizens.
International humanitarian law, by contrast, is chiefly concerned with the abnormal conditions of armed conflict and
the relationship between a state and the citizens of its adversary, a relationship otherwise based upon power rather
than law.”).
89 Refer to § 2.2.2 (Military Necessity and Law of War Rules).
90 Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).
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