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INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT
The concurrent applicability of international human rights and
humanitarian law depends on the objective legal conditions required
for the corresponding legal norms to apply. In this particular case of the
relationship between international human rights law and international
humanitarian law, it is the existence of an armed conflict that will trigger
the application of the latter and, thus, of the complementary application
of international human rights and international humanitarian protections.
The following sections will discuss the different types of conflict as defined
in conventional and customary international law and will also analyse the
challenges posed by certain uses of force that do not reach the threshold
of an armed conflict.
1. International armed conflict
Article 2 common to the Geneva Conventions states that “[i]n addition
to the provisions which shall be implemented in peacetime, the present
Convention shall apply to all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them. The
Convention shall also apply to all cases of partial or total occupation of
the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.” Protocol I to the Geneva Conventions extends
the situations covered by common article 2, stating that the situations to
which the Protocol applies “include armed conflicts in which peoples are
fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-determination” (art. 1.4).
While the Geneva Conventions and Protocol I indicate the type of
situations to which they will apply, they do not provide a clear definition of
“armed conflict”. The existence of an armed conflict is a precondition for
the application of international humanitarian law, but the existing body of
rules is not clear about the elements necessary to determine that a situation
between two States has reached the threshold of an armed conflict.
Indeed, common article 2 limits the scope of the Geneva Conventions to
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