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The application of international human rights law (IHRL) in situations of armed conflict is one of the most contested areas of contemporary international law. The controversy begins with the identification of the applicable branch (or branches) of law. Are states only bound by international humanitarian law (IHL) or are they also bound by their human rights obligations? This points to other areas of dispute: to what extent do states owe human rights obligations outside their borders? Can states derogate from IHRL in armed conflict? Debates also surround issues such as whether non-state armed actors are bound by human rights law and whether states owe human rights obligations to the members of their armed forces while on military operations. We will explore these issues and more, examining the gaps that exist between IHRL jurisprudence and the practice of militarily active states, including Australia.
Principal topics include:
- What are human rights? How have human rights claims arisen in armed conflict situations?
- What is an international/non-international armed conflict? What is a military occupation? Where does IHL apply when an armed conflict exists? Why might a state wish a situation to be (or not to be) characterised as an armed conflict?
- In what circumstances does an armed conflict enable a state to derogate from its human rights obligations? Which obligations can be derogated from?
- What is the current jurisprudence on the applicability of human rights in armed conflict (with particular emphasis on relevant case law of the European and Inter-American Courts of Human Rights)? Has the changing nature of armed conflict resulted in changes in emphasis? To what extent has this case law been accepted by states?
- How and when do human rights apply extra-territorially (that is, when is a state bound by human rights law outside its national borders)? How might this apply to Australia’s international military deployments?
- How might human rights law assist in addressing issues such as gendered violence, weapons such as drones, or targeted killings?
- Do non-state armed actors owe human rights obligations? Do international organisations engaging in violence have human rights obligations?
- Does a state have human rights obligations towards its own military personnel when deployed on operations?
- To what extent have human rights featured in justifications for the resort to violence within and across state borders? What is the relevance of notions such as ‘the responsibility to protect,’ ‘human security,’ or ‘protection of civilians’?
Intended learning outcomes
A student who has successfully completed this subject will:
- Have a critical understanding of the legal concepts of international armed conflict, non-international armed conflict and military occupation;
- Understand the derogations allowed in times of armed conflict under international human rights law;
- Have an advanced understanding of the interplay between international human rights law and international humanitarian law, as well as a sensitivity to the normative choices that underlie the selection of one regime over another;
- Be able to demonstrate a highly developed understanding of the law and critical judgment as a practitioner and advocate in the interstices of the fields of international human rights law and international humanitarian law;
- Be able to theorise, assess and critically evaluate the extent to which human rights applies in situations of armed conflict and occupation.
Last updated: 10 November 2023