INTRODUCTORY NOTE

1ARTICLES
HUMAN RIGHTS APPROACH TO REGULATE ARMED CONFLICTS:
BEYOND THE LEX GENERALIS/SPECIALIS FRAMEWORKINTRODUCTORY NOTEShuichi Furuya* and Kyo Arai**
In the Threat or Use of Nuclear Weapons opinion, the International Court ofJustice (ICJ) recognized the concurrent application of International Humanitarian
Law (IHL) and International Human Rights Law (IHRL), while adopting a puzzling
approach to distinguish the former as lex specialis from the latter lex generalis. In
the Separation Wall opinion and the Armed Activities in Congo case, however, theICJ emphasized their mutual complementarity, understanding that both laws
function as part of the holistic legal framework regulating armed conflicts. Many
subsequent cases and practices indicate that following this view, the call for Human
Rights protection affects several aspects of armed conflict beyond the humanitarianconsiderations underpinning IHL. These dictate that scholars and practitioners analyze the relationship between IHL and IHRL in a more comprehensive and nondogmatic way, departing from formalistic or misleading frameworks, such as thelex generalis/specialis dichotomy.
On the other hand, the undeniable fact is that some states still vigorously
defend the mutually exclusive or independent application of IHL and IHRL. Also,the European Court on Human Rights (ECtHR) dismissed the European
Convention’s application to the ‘active phase of hostilities’ in the recent Georgia v.
Russia II case. While the ECtHR followed its case law, necessitating the interpretation of the Convention in conformity with IHL, it categorically denied the ‘jurisdictional link’ with the respondent state for its military actions in the applicant’sterritory. This judgment may have signaled the insuperable difficulty of the concurrent application of the IHL and IHRL in some hard-case situations.
This special issue aims to contemplate this mixed conception of the relationship between IHL and IHRL, draw a clear picture of how the requirement of
Human Rights protection (the IHRL viewpoint) engages in and regulates armed
conflict situations, and offer a comprehensive understanding of this multilayered
application of international norms in armed conflicts in an integrated way. In thefirst article, which shares the subtitle of the special issue (“Human Rights Norms*		 Professor of Public International Law, Waseda Law School, Waseda University, Japan.
** Professor of Public International Law, Faculty of Law, Doshisha University, Japan.
Japanese Yearbook of International Law
Vol. 66 (2023), pp. 1-2

2Shuichi Furuya and Kyo Arai

Applicable in the Situation of Armed Conflict — Beyond the lex generalis/specialis
framework —”), Professor Yuval Shany discusses the interplay between IHL andIHRL, specifically examining the instability of existing law and practice of the coapplication of them, and the complication rooted in efforts of move beyond the lex
generalis/specialis framework, such as the ECtHR’s recent position to seemingly
returning to the pre-co-application era and ICRC’s argument for developing new
hybrid norms. Shany extended his analysis of the lex generalis/specialis framework
to the relationship between the IHRL and jus ad bellum. Professor William Schabas,in the second article (“The Right to Life in Armed Conflict”), addresses whether thedeprivation of human life in armed conflict in conformity with IHL, such as thekilling of an enemy combatant, may be a violation of IHRL. After criticizing theICJ’s lex generalis/specialis approach and tracing the codification history of theright to life, he examines the combatants’ right to life and the IHRL’s additionalprotection. He then analyzes the possible role of IHRL in further regulating themeans of warfare and wars of aggression.
Both the third article (“Gender Bias and International Humanitarian Law: Is
Human Rights Law the Answer?”), co-authored by Ms. Vanessa Murphy and Dr.
Lindsey Cameron, and the fourth (“Child Soldiers: Victims or Lawful Targets?”) byProfessor Eriko Tamura discuss the possibility of the IHRL’s complementary or predominant function in improved protection of persons. Murphy and Cameron explored whether IHRL could address gender bias in IHL through the complementary
application of substantive human rights to eliminate gender-based discriminationor other flaws in IHL. Additionally, they emphasized the need for social and cultural change beyond international law as the key to unlocking progress on genderbias in IHL, concluding that, for now, the gendering of IHL provisions must continue. Tamura considered the relationship between IHL and IHRL in the context ofthe protection of children, for which a contrary vector of influence from IHL toIHRL was noted. She first studied the special protection for children provided byboth fields of international law and subsequently probed an unanswered problem:
whether such special protections for children should persist when they become
soldiers and pose a military threat.
Lastly, in his article (“Procedural Aspect of the Right to Life in Armed Conflict”),
Professor Kyo Arai examines a relatively new issue regarding armed conflict —how, if at all, does the obligation under IHRL to investigate any deprivation of life
resulting from lethal force by State agents effect the conduct and military operationof war. Using ECtHR case law, Arai explored the possible interplay between investigative obligations in the two branches of international law, in light of that the two
may be more aligned with respect to investigative obligations than the substantive
aspect of the right to life.