The Interplay Between International Humanitarian and Human Rights Law When Applied During International Criminal Trials

The protection regimes of international human rights law (IHRL) and international humanitarian law (IHL) partially overlap. Certain unwanted conduct may therefore violate both human rights norms, which – subject to derogation – apply at all times, and humanitarian law rules, which only apply during armed conflicts. Under international criminal law, such conduct may therefore amount to both a crime against humanity and a war crime. The present contribution briefly sets out the role of human rights law in safeguarding the rights of accused persons before international criminal courts and tribunals, and thereafter analyses the impact of the interplay between IHRL and IHL on the application of the crimes against humanity and war crimes regimes. The author highlights problems that may arise in case of crimes against humanity charges for conduct that took place during an international or non-international armed conflict, and stresses the need to keep the two regimes separate and ensure a good understanding of IHL, also in cases where – as a result of prosecutorial discretion – no war crimes are charged.