Journal of Constitutional Law (Nov 2020)
The Art of Applying IHL: Jus In Bello in The Jurisprudence of Inter-American Human Rights Bodies
Abstract
Due to the ECHR’s decision regarding the request for interim measures lodged by Armenia against Azerbaijan with respect to an armed conflict, the issue of giving international humanitarian law (IHL) relevance through the jurisprudence of regional human rights bodies has recently become relevant once again. Some European scholars have criticized the Court’s attempt to get involved in the case concerning the international armed conflict, deeming the related interim measures vague, ineffective and incompatible with the role of the Court. However, while focusing on the jurisprudence of Inter-American human rights bodies, this paper will try to remind the readers that the ECHR is not the only human rights body which had to deal with IHL. It will be demonstrated that the experience of these bodies is far more creative and diverse as compared to that of the ECHR. It is not the aim of this paper to argue that decisions attempting to incorporate IHL will necessarily be complied with; nor does it intend to engage into theoretical mandate-related discussion on whether or not human rights bodies should dare dealing with IHL at all or not. Rather, it will review the jurisprudence of bodies of the Inter-American system of human rights, and suggest that, should other judicial or quasi-judicial bodies be willing to manifest the bravery of giving IHL relevance through their case-law, the IACHR and the IACtHR could be the bodies the example of which might be the one to follow.
