Protection of individuals hors de combat: convergence of international humanitarian law and international human rights law

Abstract

The principle that persons who are not, or are no longer, taking part in hostilities cannot be attacked or harmed represents one of the cornerstones of international humanitarian law. This principle is embodied by the protections afforded under international humanitarian law to individuals who are hors de combat, which apply in both international and non-international armed conflicts. Alongside the extensive protections envisaged by international humanitarian law, individuals who have fallen into enemy hands during an armed conflict also enjoy a range of substantive and procedural protections under international human rights law. The present chapter provides an overview of the relevant protections under the two systems, highlighting similarities and differences between the protections applicable under both systems, and their interaction. In doing so, it provides a critical assessment of the extent to which the protections arising under international human rights law apply to combatants who are in the power of the adverse party, and the extent to which they extend beyond those afforded under international humanitarian law.