(Mis)-Use of General Principles of Law: Lex Specialis and the Relationship Between International Human Rights Law and the Laws of Armed Conflict
© Springer International Publishing Switzerland 2015Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_13
The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship Between International Human Rights Law and the Laws of Armed Conflict
Principal Lecturer in International Law and Director of Research, School of Law, University of Bedfordshire, Bedfordshire, UK
Visiting Professor, University of Parma, Parma, Italy
The maxim lex specialis derogat legi generali is widely accepted as constituting a general principle of law. It entails that, when two norms apply to the same subject matter, the rule which is more specific should prevail and be given priority over that which is more general. In the international legal system, the concept is frequently resorted to by courts and tribunals as a tool of legal reasoning in order to resolve real or perceived antinomies between norms. One area in which the notion of lex specialis is frequently invoked is in the articulation of the relationship between international human rights law and international humanitarian law in situations of armed conflict. This has particularly been the case following the use of the term by the International Court of Justice in the Nuclear Weapons and The Wall Advisory Opinions. On closer analysis, it appears that those seminal decisions of the International Court of Justice, in using the language of lex specialis, did not intend that international humanitarian law should prevail over international human rights law. Rather, when it comes to the relationship between these two branches of law, what is commonly referred to as an application of the lex specialis principle is in reality no more than an application of the principle that treaties should be interpreted in the light of any relevant rules of international law binding on the parties. The chapter suggests that, due to the implications that international humanitarian law prevails over international human rights law, the language of lex specialis should be abandoned when discussing the relationship between the two bodies of law.
The principle commonly expressed in the maxim lex specialis derogat legi generali is a general principle of legal reasoning which has roots dating back—at least—to Roman law,1 and is accepted in the majority of legal systems. The purpose of the principle may be seen as being to provide a basis for choice to resolve the normative antinomy resulting from two conflicting rules which apply to and regulate the same subject matter. In order to solve such conflicts, the principle lex specialis derogat legi generali entails that, when two rules regulating the same subject-matter conflict, priority is to be given to that which is more specific.2
The present chapter analyzes the way in which the principle lex specialis derogat legi generali has been utilized in international legal discourse, and in particular by international courts and tribunals, in order to articulate the relationship between the norms of two branches of international law, namely international humanitarian law and international human rights law, which are concurrently applicable to situations of armed conflict. Although much discussion in that regard has turned on the application of the lex specialis principle, it is suggested that the principle is not in fact an appropriate mechanism to resolve those situations in which international humanitarian law and international human rights law provide for diverging standards.
2 The Principle Lex Specialis Derogat Legi Generali in International Law
Within the international legal system, Article 38(1) of the Statute of the International Court of Justice (ICJ) is widely accepted as an enumeration of the sources of international law.3 Article 38(1)(c) includes among those sources “the general principles of law recognized by civilized nations”. Such “general principles” were similarly previously included in the equivalent provision contained in Article 38 of the Statute of the Permanent Court of International Justice (PCIJ), on which Article 38 of the Statute of the present Court is substantially based.4
The PCIJ never referred expressly to Article 38(1)(c) of its Statute, whilst the ICJ, for its part, has only rarely made express reference to the category of general principles referred to in Article 38(1)(c),5 and has refrained from outlining the contours of the notion, or expressly confirming that specific principles fall within it.6 As a result of the reticence of the PCIJ and ICJ in expressly relying on Article 38(1)(c), “international lawyers have never reached agreement on the definition of the general principles mentioned in Art. 38”.7 Nevertheless, it is relatively clear that their essential characteristics are that they should be “unwritten legal norms of a wide-ranging character”, which are “recognized in the municipal laws of States”, and which must be capable of transposition at the international level.8
There is little doubt that the principle lex specialis derogat legi generali, together with its sister principles lex posterior derogat priori and lex superior derogat inferior, fit the definition of “general principles of law” as contained in Article 38(1)(c) of the ICJ Statute, insofar as they are (a) norms of general legal reasoning, which (b) are recognized in the majority (if not all) domestic legal systems, and (c) can be transposed to and applied at the international level.9
The resolution of conflicts between norms through application of the maxim lex specialis derogat legi generali has frequently been resorted to in the international legal system. In contrast to the principles of lex posterior and lex superior, the principle lex specialis does not figure among the rules of coordination included in the Vienna Convention on the Law of Treaties (VCLT),10 nor has it been codified elsewhere as a rule of general application in international law. Nevertheless, it is frequently given effect in specific circumstances.
By way of example, Article 55 of the Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission (ILC) in 2001, entitled “lex specialis”, provides that the norms embodied in the remainder of the Articles do not apply “where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law”.11
In addition, the lex specialis principle has been recognized and applied by international courts and tribunals in a variety of contexts.
A first manner in which the lex specialis principle has been used is in order to explain the point that, in general—and to the extent that the relevant customary rule does not constitute jus cogens—States are free by entering into a treaty to modify the obligations which would otherwise be applicable between them under customary international law.12 In other words, as a general matter, a treaty obligation, being more specific, will prevail over customary international law, as the more general.13 The application of the principle in this manner is qualified, in the sense that a treaty will only apply as lex specialis if and to the extent that the relevant treaty obligations between the parties make special provision for the specific question in issue, and the parties may thus be taken, to that extent, to have agreed to exclude the otherwise applicable rules of customary international law.14
The second manner in which the lex specialis principle may be used is as a means for articulating the relationship between norms contained in the same treaty, or in connected instruments, which are potentially applicable to the same subject-matter.15 The principle of lex specialis has been extensively used in this way by the European Court of Human Rights (ECtHR) to explain the articulation between provisions within the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)16 which deal with the same subject matter. For example, the European Court has emphasized that the right pursuant to Article 5(4) of the ECHR of anyone deprived of their liberty to have the legality of their detention determined by a competent judicial body (habeas corpus) constitutes lex specialis as regards the more general right under Article 13 of anyone whose rights under the Convention have been violated to an effective remedy at the domestic level.17 Similarly, it has held that the right to a fair trial under Article 6(1) of the ECHR constitutes lex specialis vis–à–vis the right to an effective remedy under Article 13.18
As regards articulation of rules relating to the same subject matter contained in different treaties, an example is given by the ILC Study Group on Fragmentation, which notes that, whilst the Ottawa Convention on Anti-Personnel Landmines19 may be regarded as laying down the general law as to landmines, from another perspective it regulates “a ‘special’ aspect of the general rules of humanitarian law”.20 As a consequence, to the extent that the general rules of international humanitarian law (both treaty-based and customary) permitted the use of landmines by belligerents in an armed conflict, for the parties to the Ottawa Convention, their right to do so is now limited.
Nevertheless, the application of rule lex specialis in such circumstances is not automatic. In the Southern Bluefin Tuna arbitration, the UNCLOS Annex VII arbitral tribunal recognized that there was some support in international law for the proposition that, where there was a framework treaty and an implementing treaty, the latter might operate as “lex specialis that governs general provisions of an antecedent treaty”.21 However, it went on to emphasize that:
[I]t is a commonplace of international law and State practice for more than one treaty to bear upon a particular dispute. There is no reason why a given act of a State may not violate its obligations under more than one treaty. There is frequently a parallelism of treaties, both in their substantive content and in their provisions for settlement of disputes arising thereunder. The current range of international legal obligations benefits from a process of accretion and cumulation; in the practice of States, the conclusion of an implementing convention does not necessarily vacate the obligations imposed by the framework convention upon the parties to the implementing convention.22
The operation of the lex specialis principle in the international legal system has been the subject of in-depth (if not always clear) discussion in the context of the work of the ILC on Fragmentation of International Law. In its “Conclusions” adopted in 2006, the ILC’s Study Group on Fragmentation described the maxim lex specialis derogat legi generali as “a generally accepted technique of interpretation and conflict resolution in international law”,23 and noted that it “suggests that whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific”.24
In the more detailed study underlying those final conclusions, the Study Group postulated that “the lex specialis principle” might operate in two ways, “[a] particular rule may be considered an application of a general standard in a given circumstance. The special relates to the general as does administrative regulation to law in domestic legal order. Or it may be considered as a modification, overruling or a setting aside of the latter”.25 However, in that regard, the ILC also noted that “whether a rule is seen as an ‘application’, ‘modification’ or ‘exception’ to another rule depends on how we view those rules in the environment in which they are applied, including what we see as their object and purpose”.26
3 Lex Specialis as the Coordinating Principle Between International Humanitarian Law and International Human Rights Law?
In light of the preceding overview of the application of the lex specialis principle generally in public international law, the focus turns to the manner in which it has been used (and arguably abused) in articulating the relationship between international humanitarian law and international human rights law.27 The present section will examine first the approach of the ICJ to the relationship between the two branches of law, before briefly surveying the way in which selected international human rights monitoring bodies and courts have dealt with the issue.28
3.1 The Approach of the International Court of Justice
The classic statement that lex specialis in some way constitutes the principle governing the interrelationship of international humanitarian law and international human rights law as applied in situations of armed conflict is the ICJ’s Nuclear Weapons Advisory Opinion. There the Court, in discussing the applicability of the International Covenant on Civil and Political Rights (ICCPR)29 in situations of hostilities, observed that:
The notion that international humanitarian law constitutes “lex specialis” in relation to the rules of international human rights law was subsequently reiterated and expanded upon by the ICJ in 2004 in The Wall Advisory Opinion.31 The Court, having cited the relevant passage from the Nuclear Weapons Opinion, reiterated that, subject to the possibility of derogation recognized by human rights treaties, international human rights law continued to apply in case of armed conflict.32 It then went on to explain that:
[T]he protection of the [ICCPR] does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.30
As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.33
Although the ICJ did not in that context suggest any general coordinating criterion for the third situation (i.e. those in which the rights in question were “matters of both … branches of international law”), the language of lex specialis again made an appearance in the following lines. The Court went on to note that, in order to answer the question facing it, i.e. whether the actions of Israel were inconsistent with its international obligations, and, if so, what were the consequences, it had to “take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law”.34
The Court’s recourse to the term lex specialis in its two Advisory Opinions to denote the role of international humanitarian law is problematic, and raises as many questions as it answers.
As Marko Milanovic has convincingly shown in his recent study on the “lost origins” of the lex specialis principle as the mechanism for articulating the relationship between international humanitarian law and international human rights law,35 it appears that the principle was not generally invoked in the academic literature as regulating the relationship between the two bodies of law prior to the Nuclear Weapons Opinion.36 Further, the “lex specialis” principle was not widely relied upon by the States which made submissions in Nuclear Weapons; it would appear to be traceable back to a single (ambiguous) passage in the written submission of the United Kingdom before the Court, which itself did not make reference to the Latin maxim in extenso.37
In the two Advisory Opinions, the ICJ itself did not invoke the full form of the maxim lex specialis derogat legi generali, nor did it as such refer to the “lex specialis principle”; rather, it used the abbreviated tag lex specialis to characterize international humanitarian law. Indeed, the manner in which the Court used the tag does not appear to correspond to the principle as contained in the Latin maxim as such. That maxim, in its strict sense, and as is clear from the word “derogat”, implies the (partial or total) disapplication or displacement of the general law in favor of the special law. However, in both Nuclear Weapons and The Wall the starting point of the Court’s analysis was precisely that—subject to any relevant derogation permitted in accordance with the terms of the relevant instrument—international human rights law was not disapplied or displaced by the existence of an armed conflict, and instead continued to apply in parallel with international humanitarian law.
In any case, the use of the words lex specialis in Nuclear Weapons occurred in the specific context of the Court’s discussion of the narrow question of the operation in situations of armed conflict of the right to life under Article 6 of the ICCPR, which prohibits the “arbitrary” deprivation of life. In that regard, what the Court appeared to have envisaged by its reference to lex specialis is that, whilst both international humanitarian law and international human rights law apply to situations of armed conflict, the relevant rules of international humanitarian law can be taken into account in determining when a deprivation of life is to be considered “arbitrary” for the purposes of Article 6. Far from being an application of the lex specialis principle, such an approach is, in fact, far closer to the principle of systemic interpretation. That principle, which is embodied in Article 31(3)(c) of the VCLT, and forms part of the generally applicable rules of treaty interpretation, requires that, in interpreting a treaty provision, the interpreter should take into account “any relevant rules of international law applicable in the relations between the parties”.
Understood in this sense, the reference to the lex specialis nature of international humanitarian law has nothing to do with international humanitarian law prevailing over or displacing international human rights law, but rather would appear to be used as shorthand for the proposition that, where human rights obligations fall to be applied in a situation of armed conflict, due effect should be given to the requirement to interpret the relevant obligations in light of, and consistently with, the equally applicable rules of international humanitarian law.
In order to elucidate what the ICJ may have intended by referring to lex specialis, it is instructive to examine the manner in which the Court went on to apply the relevant standards of international humanitarian law and international human rights law in The Wall.
The ICJ identified a variety of applicable obligations, under both international humanitarian law and international human rights law, which were potentially implicated by Israel’s construction of the security barrier and the associated regime,38 before proceeding to examine whether the conduct of Israel was in principle inconsistent with those obligations. In considering the potential violation of the relevant international human rights law instruments, the Court did not use international humanitarian law to inform its reading of the scope of Israel’s obligations under the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR)39 and the Convention on the Rights of the Child.40 The Court discussed both the possibility of derogation under some of the instruments, and the “qualifying clauses” contained therein, solely in terms of international human rights law41 and held that neither affected the conclusion that Israel’s conduct was inconsistent with its obligations under international human rights law.42 As observed by Bethlehem, the Court “did not undertake any further analysis of the relationship between the applicable international humanitarian law rules and those of the ICCPR that it held to apply, simply commingling in its analysis various provisions from both strands”.43
It thus appears that the ICJ, in characterizing international humanitarian law as lex specialis in its two Advisory Opinions, did so in a very particular sense. It is relatively clear that it did not intend to refer to the maxim lex specialis derogat legi generali, or, at least, that it did not intend the consequence to be the disapplication of international human rights law in favor of international humanitarian law. Rather, the recourse to Latin appears to have been used merely to indicate that the rules of international humanitarian law were to be given effect, as far as possible, where relevant in the assessment of whether there had been compliance with obligations under international human rights law.
The ILC, in its 2006 Study on Fragmentation, appears to have perceived the difficulty in characterizing the ICJ’s approach in Nuclear Weapons as one involving application of the maxim lex specialis derogat legi generali in its strongest form. On the one hand, it recognized that the Court had expressly affirmed that international human rights law continued to apply, noting that “the two fields of law applied concurrently, or within each other”.44 Nevertheless, in an apparent attempt to square the Court’s use of the term with the fact that the maxim lex specialis implies the disapplication of the general norm in favor of the special, it went on to suggest that:
[F]rom another perspective … the law of armed conflict – and in particular its more relaxed standard of killing – set aside whatever standard might have been provided under the practice of the Covenant.45
The suggestion by the ILC that international humanitarian law had “set aside” the standard otherwise applicable under the “practice” of the ICCPR in respect of the right to life is misleading. Notwithstanding the Court’s reference to lex specialis, the applicable standard under Article 6 of the ICCPR remained at all times that of arbitrariness; what the Court suggested was rather that what was to be considered as “arbitrary” had to be interpreted taking account of the circumstances, including the fact that the situation in question was an armed conflict to which the laws of armed conflict applied.
It is notable that, since The Wall, the ICJ appears to have deliberately avoided making use of the language of lex specialis in articulating the relationship between international humanitarian law and international human rights law. In its 2005 judgment in Armed Activities on the Territory of the Congo, one of the questions facing the Court was whether the conduct of members of the Uganda People’s Defence Force (UPDF), which the Court had found to be attributable to Uganda, constituted a breach of the latter State’s obligations under international humanitarian law and international human rights law. Having cited the passage from The Wall as to the three possible situations as regards the applicability of international humanitarian law and international human rights law,46 it summarized its finding in that case as having been that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration”.47 Notably, it omitted the specification that, in doing so, international humanitarian law was to be treated as lex specialis.
Thereafter, in assessing whether Uganda had breached its various obligations under international human rights law,48 the Court did not discuss how the relevant standards were to be interpreted in light of the existence of an armed conflict and the concurrent applicability of international humanitarian law rules. Admittedly, the absence of any reference to the fact that international humanitarian law was to be taken into consideration as lex specialis might be explained on the basis that the conduct at issue was blatant and egregious, and was prohibited equally under both international humanitarian law and international human rights law. Nevertheless, it is striking that the Court carved out the citation from The Wall in such a way as to avoid any reference to the notion of lex specialis.
Most recently, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the parties had debated the issue of whether acts which were lawful as a matter of international humanitarian law could constitute the actus reus of genocide. In that regard, the Court emphasized that the Genocide Convention and international humanitarian law:
[A]re two distinct bodies of rules, pursuing different aims. The Convention seeks to prevent and punish genocide as a crime under international law (Preamble), “whether committed in time of peace or in time of war” (Article I), whereas international humanitarian law governs the conduct of hostilities in an armed conflict and pursues the aim of protecting diverse categories of persons and objects.49
Although it took the position that, in light of the limited scope of its jurisdiction, it was not required to “rule, in general or in abstract terms, on the relationship between the Genocide Convention and international humanitarian law”,50 the Court nevertheless added that:
[I]n so far as both of these bodies of rules may be applicable in the context of a particular armed conflict, the rules of international humanitarian law might be relevant in order to decide whether the acts alleged by the Parties constitute genocide within the meaning of Article II of the Convention.51
Further, later in its judgment, in the context of its examination of Serbia’s counter-claim, the Court observed that:
[T]here can be no doubt that, as a general rule, a particular act may be perfectly lawful under one body of legal rules and unlawful under another. Thus it cannot be excluded in principle that an act carried out during an armed conflict and lawful under international humanitarian law can at the same time constitute a violation by the State in question of some other international obligation incumbent upon it.52
The Genocide Convention, to the extent it may properly be characterized as a human rights instrument, is obviously of a very different type from the ICCPR or ICESCR; it is concerned with the prohibition, prevention and criminalization of the crime of genocide at the international level, rather than with the conferring of specific rights on individuals with corresponding obligations to respect those rights imposed upon States. Nevertheless, the Court’s observations resonate with the overarching question of the articulation of the relationship between different standards in different areas of law. They appear to mark both a further step in the careful retreat from use of the term lex specialis, and recognition that the question of the interaction of norms deriving from different areas of law is substantially more complex, and cannot be resolved solely through an application of the lex specialis principle.
3.2 The Relationship Between International Humanitarian Law and International Human Rights Law in the Practice of Human Rights Bodies
Despite the somewhat different perception by some academic commentators, the majority of human rights bodies appear not to have subscribed to the suggestion by the ICJ that the relationship between international humanitarian law and international human rights law is one of lex specialis/lex generalis.
The terminology of lex specialis is notably absent from the practice of the Human Rights Committee. The Committee’s General Comment no. 31 was adopted on 29 March 2004, several years after the Nuclear Weapons Advisory Opinion and only a few months before the ICJ handed down its decision in The Wall.53 In dealing with the question of the continued applicability of the ICCPR in times of armed conflict, the Committee noted that:
[T]he Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.54
This approach, whilst corresponding in broad terms to the approach of the ICJ to the applicability of the ICCPR to armed conflict, is far more subtly and carefully phrased. On the one hand, whilst not specifying which, the Committee limits the potential relevance of international humanitarian law to the interpretation of only certain rights under the ICCPR. On the other, although recognizing that the rules of international humanitarian law “may be specially relevant” for the interpretation of the Covenant, it eschews the use of the language of lex specialis, and the corresponding ambiguity as to whether the relationship is one in which international humanitarian law prevails over the ICCPR.
Other monitoring bodies have adopted the notion of lex specialis in part, although without giving priority to international humanitarian law. For instance, in Coard v. United States, in discussing the continued applicability of the American Declaration on Human Rights55 in situations of armed conflict and occupation, and rejecting the argument by the United States that “the situation denounced was governed wholly by international humanitarian law”,56 the Inter-American Commission on Human Rights observed that:
[I]n a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis.57
The Commission went on to emphasize, however, that:
[A]s a general matter, while the Commission may find it necessary to look to the applicable rules of international humanitarian law when interpreting and applying the norms of the inter-American human rights system, where those bodies of law provide levels of protection which are distinct, the Commission is bound by its Charter-based mandate to give effect to the normative standard which best safeguards the rights of the individual.58
The Commission has adopted a similar approach under the American Convention on Human Rights (ACHR),59 Article 29(b) of which provides that no provision of the Convention “shall be interpreted as … restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party”. For instance, in Abella the Commission noted that that the provisions of the American Convention and humanitarian law instruments may apply concurrently, and observed that Article 29(b) of the ACHR required it “to take due notice of and, where appropriate, give legal effect to applicable humanitarian law rules”.60 However, at the same time, it observed that:
[W]here there are differences between legal standards governing the same or comparable rights in the American Convention and a humanitarian law instrument, the Commission is duty bound to give legal effort to the provision(s) of that treaty with the higher standard(s) applicable to the right(s) or freedom(s) in question. If that higher standard is a rule of humanitarian law, the Commission should apply it.61
By contrast, the Inter-American Court of Human Rights (IACtHR) has taken a different approach. It has implicitly rejected any application of the lex specialis principle, and has adopted a far more radical line, according to which, for parties to the ACHR, their obligations thereunder prevail, and the conduct of a State falls to be assessed solely in accordance with the obligations under the American Convention, whether or not that conduct is permitted under any other body of law.
In Las Palmeras (Preliminary Objections), the IACtHR held that it was competent “to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible or not with the American Convention”.62 At the same time, it emphasized that it was concerned only with the compatibility with the American Convention of the conduct of States in purported application of international law, and that it had no jurisdiction as such to assess compliance with instruments of international humanitarian law:
[I]n order to carry out this examination, the Court interprets the norm in question and analyzes it in the light of the provisions of the Convention. The result of this operation will always be an opinion in which the Court will say whether or not that norm or that fact is compatible with the American Convention. The latter has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions.63
On the other hand, although applying solely the American Convention (and/or other relevant instruments over which it has jurisdiction), the Inter-American Court has asserted the possibility of having recourse to considerations deriving from international humanitarian law in interpreting the provisions of the American Convention in situations of armed conflict.64 In addition, although not going so far as to assert its competence to declare a State internationally responsible for violations of international humanitarian law, it has stated that it is able to “observe” whether the conduct of the respondent State was also contrary to international humanitarian law.65
By contrast, at least until very recently, the ECtHR has refrained from making any reference to the possibility of inconsistency between the ECHR and international humanitarian law. Further, it has not sought to apply (nor has it until comparatively recently even mentioned) the notion of lex specialis in this context. Even when faced with cases involving alleged violations of provisions of the European Convention which had occurred in situations of occupation or armed conflict, the Court made no mention of the relevant observations of the ICJ in the Nuclear Weapons and The Wall Advisory Opinions in its reasoning, and did not even refer to the relevant passages.66
Most notably, in a number of cases arising out of the internal armed conflict in Chechnya, the Court was faced with questions relating to the conduct of the Russian armed forces resulting in the killings of civilians.67