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INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT
conflicts, this corresponds to the question of how remote the situation is
from the battlefield, although new types of conflicts are characterized by
the absence of frontlines and battlefields.
What then constitutes sufficient control to warrant international human
rights law predominating as the lex specialis? In an area on the territory
of a State whose Government is fighting rebel forces, but which is neither
under firm rebel nor under firm Government control, the impossibility to
arrest the fighter, the danger inherent in attempting to arrest the fighter and
the danger represented by the fighter to Government forces and civilians,
as well as the immediacy of this danger, may lead to the conclusion that
international humanitarian law is the lex specialis in that situation. In
addition, where neither party has clear geographical control, the higher
the degree of certainty that the target is actually a fighter, the easier the
international humanitarian law approach appears as lex specialis.101
Even where international human rights law prevails as the lex specialis in
the context of armed conflict, international humanitarian law remains in
the background and may in some specific situations relax the international
human rights law requirements of proportionality and warning, once
an attempt to arrest has been unsuccessful or is not feasible. Similarly,
even where international humanitarian law prevails as the lex specialis,
international human rights law remains in the background and may require
an inquiry whenever a person has been deliberately killed by security
forces in a non-combat situation.
See Suarez de Guerrero v. Colombia, paras. 13.1–13.3.
101
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