Are customary international humanitarian law and human rights law reflected in recent soft law instruments regulating armed conflict?
As described in section 4.3, all seven soft law instruments clearly incorporate, draw on, or refer to CIHL. This is not surprising, since CIHL is clearly a relevant legal source in international as well as non-international armed conflict.
Similarly, it is evident, as discussed in section 2, that IHRL is a relevant source of law in armed conflicts. Hence, it is remarkable that only three of the nine described soft law instruments reflect or incorporate international human rights norms, namely: the ICRC study on Customary International Humanitarian Law (section 3.2); the Montreux Document (section 3.4), and the Lucens Guidelines (section 3.9).
The rest of the described soft law instruments deliberately exclude IHRL. In some soft law instruments, IHRL is perceived as irrelevant to the subject matter dealt with in the instrument; in others, IHRL is perceived as relevant but considered to lie outside the scope of the instrument.
A large proportion of the new soft law instruments thus reflect an outdated legal position that prevailed more than twenty years ago, namely that IHL and IHRL are two distinct and separate systems of norms, with IHL only applicable in armed conflict and IHRL only applicable in times of peace. As a consequence of this situation, states bear the risk of being criticized by human rights bodies if they follow soft law instruments excluding IHRL, while European states even run the risk of a case being held against them by the ECtHR and being ordered to provide redress and compensation.
For example, if a state is carrying out preventive detention of a detainee in a noninternational armed conflict for security reasons, as provided for in the Copenhagen Guidelines on the Handling of Detainees—or if a state launches a missile in a populated area in an armed conflict, in line with guidance on collateral damage assessments provided in the HPCR Manual on International Law Applicable to Air and Missile Warfare—there is a potential risk that these state actions would conflict with the more restrictive standards on the right to life and the right to liberty in IHRL hard law.