II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
Moreover, international human rights law has continued to expand
through jurisprudence and the addition of new human rights protections
in the context of armed conflict, irrespective of whether the conflict is
international or non-international. The Optional Protocol to the Convention
on the Rights of the Child on the involvement of children in armed conflict,
for instance, creates international human rights obligations regarding the
recruitment and use of children in armed groups, in times of peace and in
times of war, irrespective of whether an armed conflict is international or
non-international. As the range of international human rights protections
particularly pertinent to situations of armed conflict increases, and because
international human rights law applies to both international and noninternational conflict, it becomes arbitrary to exclude similar international
humanitarian law protections that had previously been reserved for one
category of conflict.
Finally, recent developments show a sharp increase in the number and
intensity of non-international armed conflicts, as well as a growing
number of United Nations peacekeeping missions and international
coalitions to assist a State in an armed conflict within its own territory.
All these factors have combined to render the application of traditional
distinctions of international humanitarian law between international and
non-international armed conflicts extremely challenging. It is, however,
uncontroversial that combatant immunity against prosecution for acts of
hostility not prohibited by international humanitarian law (a central feature
of prisoner-of-war status in international armed conflicts) and the rules on
military occupation cannot be applied by analogy to non-international
armed conflicts. In addition, when bringing international humanitarian
law of non-international armed conflicts closer to that of international
armed conflicts, it should be kept in mind that the former also applies to
non-State armed groups, which are often less able to comply with the more
demanding rules of international humanitarian law of international armed
conflicts.
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