The missing elephant in the room-the jurisdiction of international human rights tribunals over international humanitarian law

Abstract

Treaty-based tribunals that render binding decisions on states under international human rights law (IHRL) have long engaged with international humanitarian law (IHL) in their judgements but little attention has been given to the basis of their jurisdiction, if any, to do so. By revisiting fundamental questions on the jurisdictional basis of international tribunals, this article presents a methodological challenge to the uncritical engagement with IHL by certain IHRL tribunals. After surveying the jurisdiction of different IHRL tribunals explicitly founded on treaties, the article seeks not only to justify, but also delimit, the inherent jurisdiction of IHRL tribunals to consider IHL for interpretive purpose, in contrast to directly applying it to the dispute. Finally, the article analyses the substantive and practical implications of stricter observance of the jurisdictional limits of IHRL tribunals on the interpretation of IHRL, the determination of 'absent' states' legal interest under IHL and the future of IHL dispute settlement.