60
INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT
a specific situation, produce diverging results.88 Third, the principle
determines which rule prevails over another in a particular situation.89
The main aspect that should be retained is that, according to the lex
specialis principle, when two conflicting provisions apply to the same
situation, the provision that gives the most detailed guidance should be
given priority over the more general rule.90
In international armed conflict, some rules of international humanitarian
law are recognized as lex specialis on a number of issues. For example,
in a 1996 advisory opinion the International Court of Justice examined
the interaction between international human rights law and international
humanitarian law concerning, in particular, the diverse regulation of the
right to life. The Court indicated that, in principle, the right not to be
arbitrarily deprived of one’s life (International Covenant on Civil and
Political Rights, art. 6) applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then falls to be determined by the
applicable lex specialis, namely, international humanitarian law, which
is designed to regulate the conduct of hostilities. This was true at least
for the issue to be determined by the Court, i.e., whether the use of a
certain weapon was lawful. The Court was also careful to point out that
human rights law continues to apply in armed conflict. International
humanitarian law as lex specialis does not suggest that human rights are
In the report to the Human Rights Council on the outcome of the expert consultation on
the human rights of civilians in armed conflict, “some experts explained that bodies
of law as such did not function as lex specialis. It was recalled that the lex specialis
principle meant simply that, in situations of conflicts of norms, the most detailed and
specific rule should be chosen over the more general rule, on the basis of a case-by-case
analysis, irrespective of whether it was a human rights or a humanitarian law norm” (A/
HRC/11/31, para. 13).
89
Yearbook of the International Law Commission, 2004, vol. II, Part II (United Nations
publication, forthcoming), para. 304.
90
The Study Group of the International Law Commission also indicated in its final report
that “a special rule is more to the point (‘approaches most nearly to the subject in hand’)
than a general one and it regulates the matter more effectively (‘are ordinarily more
effective’) than general rules. This could also be expressed by saying that special rules
are better able to take account of particular circumstances” (A/CN.4/L.682, para. 60).
88
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