International Law, War and Human Rights: The Humanitarian Response against the State of Emergency

Abstract

The interaction between human rights and humanitarian law represents a relevant question to explain the fragmentation of international law. The separate treatment of such areas of law allows to delineate different contents and application procedures, while the joint consideration is not simple, in view of the reasons for which each of the two has been created. Humanitarian law is a set of rules of conduct limited to specific pathological situation, presumably temporary. The international human rights law is the establishment of a political and legal concept of man as endowed with certain inalienable rights that constitutes an obstacle to the arbitrary use of force by States. The aim of the paper is to identify the conflicts arising from the interaction between these regulatory systems, starting from the "derogation clauses" and the "state of emergency", circumstances in which there are suspensions of human rights in the face of a public emergency, specifically the armed conflict. Moreover, it is necessary to analyze the containment of the war between the States, establishing whether humanitarian law is a possible exception to human rights, in view of armed conflict. A key objective is to determine whether humanitarian law generates a full-fledged "State of exception", on the basis of global warfare scenario, where there are situations of chronic emergency.