Between Humanization and Humanitarization? Detention in Armed Conflicts and the European Convention on Human Rights

International Humanitarian Law in Areas of Limited Statehood

“…25 While the extraterritorial application of human rights may in principle arise for all State activities in an ____________________ 22 UN HRC, 'Concluding observations on the fourth periodic report of the United States of America' ( interconnected and globalised world, most decisions concerned military missions in areas of limited statehood, either in a state of armed conflict, situations of occupation, or other activities involving the deployment of military forces, such as in counter-piracy operations. 26 This extension of human rights treaties has forced States to adapt their extraterritorial conduct to human rights standards. Furthermore, it has raised questions concerning the relationship of IHRL to other law regimes, in particular IHL, 27 and even the very foundations of international law.…”

“…To be sure, the general idea of restrictions, be they humanitarian or otherwise, is inherent in the very idea of a law applying to war. 26 This example should underline that the terms we use also have a strong influence on our idea of reality: there is a big difference if one speaks about the jus in bello as 'international humanitarian law' or as 'law of armed conflict'. As much as the general call for 'humanised warfare' is to be welcomed, it must never detract from the fact that even an ideal IHL will always remain at most only the second-best solution.…”

“…24 The UK Court of Appeals not only observes that 'in this statement, the ICRC derives a positive power to intern from an absence of prohibition', 25 but the court supports a view of the nature of modern international law according to which the 'absence of prohibition equals authority' approach is criticised and considered to be outdated. 26…”

“…As soon as an individual had been detained, the use of lethal force against him would have no longer provided a basis for the detention of this individual. 26…”

“…Fifthly, the group must speak with one voice, for instance in the form of common statements. 26 Although these criteria seem ample, they can only remain indicators as they merely touch upon some of the problems of defining an OAG 27 ; thus, it might still prove difficult to factually establish the aforementioned facts when dealing with such a group. Nonetheless, the criteria remain a sufficient roadmap in order to better deal with this kind of actors.…”