8 King's Student L. Rev. 1 (2017)

handle is hein.journals/kinstul8 and id is 1 raw text is: 




The   Crossed Judicial Scrutiny of the European Court of Human Rights
     and  International Court of Justice: A Plea for Reforms in Order to
   Enhance Coordination Between International Humanitarian Law and
                         International   Human Rights Law



                                     Giulia Gentile*

     I.     Introduction

In recent  years, the relationship between International Humanitarian  law  (IHL)  and
International Human Rights law (IRL)  has become  the subject of increasing debate. These
two  branches of international law (IL) have very different historical origins and scopes.
Notably, IHL   applies to situations of armed conflict (AC) and  grants a minimum   of
protection to civilians and combatants in such situations; IHRL applies without limitations to
protect individuals' rights from the States' abuses.1 As a consequence of their characteristics,
the competence to apply these two IL branches is attributed to different bodies.2

However,  the boundaries between IHL and IHRL have gradually become less defined.3 Indeed,
situations falling in the scope of application of both these IL branches have significantly
increased. Consequently, the necessity for the international courts not specialised in IHRL to
take into account this body of law in their judgements, and vice versa for courts not specialised
in IHL,4 became unavoidable. The expansion of the application of IHL and IHRL in overlap
situations, and the consequent extension of international courts' scrutiny over areas of IL not
previously considered, generated a phenomenon   which can be  defined as crossed judicial
scrutiny of international courts.5

The international Court of Justice (ICJ) and the European Court of Human Rights (ECtHR)
provide  a remarkable   example  of  crossed scrutiny, having  expanded  their judicial
assessments, respectively, in relation to IHRL and IHL. For instance, in 1996 the ICJ has
considered for the first time in the Nuclear Weapons Opinion6 the applicability of IHRL in the
context of AC. In the meantime, in an increasing number of cases, the ECtHR had to confront
the Convention  applicability in AC with IHL.7 As a matter of fact, the ICJ and the ECtHR


* PhD Candidate at King's College London.
1 Robert Kolb, Advanced Introduction to International Humanitarian Law (Edward Elgar 2014).
2 See infra.
3Anthony E. Cassimatis, 'International Humanitarian Law, International Human Rights Law, And Fragmentation
of International Law', [2007] ICLQ 623.
4 Marko Milanovic, 'Norm Conflicts, International Humanitarian Law, and Human Rights Law' in Orna Ben-
Naftali (ed.) International Humanitarian Law and International Human Rights Law (OUP 2011).
A   similar idea has been expressed in Christine Byron, 'A Blurring of the Boundaries: The Application of
International Humanitarian Law by Human Rights Bodies' [2007] J. Int'l L. 839. However, the author only
analysed the interpretation of IHL by IHRL bodies.
6 Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion, ICJ Rep. 1996, 240 (Nuclear Weapons).
7 See, e.g., the Chechnyan litigation before the ECtHR, analysed in detail in William Abresch, 'A Human Rights


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