Die Anwendung von Menschenrechten im bewaffneten Konflikt: Normative Grundlagen, neue Entwicklungen und Anwendungsmodalitäten

The relationship between international humanitarian law and human rights law has become a long lasting controversy among scholars and practitioners dealing with international law. However, the fronts seem to be hardened between those who find humanitarian law to take primacy and those that grant more weight to human rights in armed conflicts. While the topic is of clear scientific and theoretical interest, its relevance does not stop there. Answers to the questions, if and how human rights apply in (non-)international armed conflicts alongside international humanitarian law are urgently needed in practice as well. Practice, moreover, demands not only a clarification of the abstract relationship between the two fields of law, which is problematic enough on its own, it also needs clear guidance on how to apply this to ongoing situations in armed conflicts around the world. Drawing on UN practice as well as the jurisprudence of the European Court of Human Rights, this article examines the normative relationship between humanitarian and human rights law and then applies these findings by examining more closely the right to life, the right to liberty and the general situation in non-international armed conflicts. The article is firmly based on the conviction that the purpose of human rights and humanitarian law alike – to guarantee legally protected goods such as life and liberty even in conflict – is not served by high normative standards alone. It is only attainable, when the normative framework takes into account the extraordinary situation of armed conflict and makes demands that can be complied with even in these dire circumstances. The article thus aims to identify a methodological framework which offers coherent answers to the question, how to apply norms from both fields of law to a certain situation in an armed conflict and arrive at a result, which can be complied with in armed conflicts.