II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
of these options to restrict the applicability of international human rights
and humanitarian law. The following sections will analyse these conditions
and clarify how these exceptional regimes could be linked to situations of
armed conflict.
1. Derogation from human rights obligations
In certain exceptional circumstances, States are allowed to derogate from
their accepted human rights obligations. The International Covenant on
Civil and Political Rights, for example, recognizes that “[i]n 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 […]” (art. 4.1).53 Yet, derogations are subject to stringent
conditions:
The existence of a public emergency: the Human Rights Committee has
stated that not every armed conflict qualifies as a state of emergency.
In that respect, the Committee has indicated that “[t]he Covenant
requires that even during an armed conflict measures derogating from
the Covenant are allowed only if and to the extent that the situation
constitutes a threat to the life of the nation. If States parties consider
invoking article 4 in other situations than an armed conflict, they
should carefully consider the justification and why such a measure
is necessary and legitimate in the circumstances.”54 Furthermore, the
European Court of Human Rights has defined public emergencies
as “an exceptional situation of crisis or emergency which affects the
whole population and constitutes a threat to the organized life of the
community of which the State is composed”;55
Derogation clauses can also be found in the American Convention on Human Rights
(art. 27) and in the European Convention for the Protection of Human Rights and
Fundamental Freedoms (art. 15).
54
General comment No. 29 (2001), para. 3.
55
Case of Lawless v. Ireland (No. 3), application No. 332/57, Judgement of 1 July 1961,
para. 28.
53
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