Foregoing Lex specialis ? Exclusivist v. symbiotic approaches to the concurrent application of international humanitarian and Human Rights Law

Developments in the international arena have led to the widespread acceptance of the relevance and continued applicability of international human rights law (IHRL) during armed conflict, raising questions as to its relationship with international humanitarian law (IHL). These questions have become increasingly pressing in light of the expanding extraterritorial application of human rights in recent case law. A closer look at State practice and jurisprudence nonetheless reveals that there is no common approach to managing the co-application of IHL and IHRL. Traditionally, the lex specialis principle has been used to resolve any issues relating to the concurrent application of both bodies of law. Yet, more recently, Courts and legal experts alike have begun looking for alternative methods to translate the interplay between IHL and IHRL into practice. This casts doubts over the continued relevance and adequacy of the lex specialis principle as a one-size-fits-all solution ; at the same time, it remains unclear whether any of the alternative approaches can provide an adequate answer to the IHL/IHRL conundrum. This paper will therefore examine whether the practical challenges in implementing the principle, as identified in legal discourse, justify discarding it and whether the suggested alternative options succeed where lex specialis supposedly fails. Throughout and where necessary, the law and practice relating to internment during international military operations will serve as illustration.

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