There seems to be no doubt about the application of human rights in armed conflicts, but until now, how they are applied had been only partially explored. In Human Rights in Armed Conflict, Gerd Oberleitner offers a meticulous analysis and asks profound questions about the “purpose, nature and scope of the whole jus in bello”. Indeed, the book’s main hypothesis is that human rights impact upon and are gradually changing the jus in bello as we know it. This issue, however, is not merely a matter of legal theory, but a confrontation between advocates of a human rights-oriented law enforcement paradigm and advocates of a security-oriented armed conflict paradigm.
Common Article 3 to the four Geneva Conventions encourages the parties to a noninternational armed conflict to bring into force international humanitarian law provisions through the conclusion of special agreements. Since armed groups are ever more frequent participants in contemporary armed conflicts, the relevance of those agreements as means to enhance compliance with IHL has grown as well. The decision-making process of special agreements recognizes that all the parties to the conflict participate in the clarification and expansion of the applicable rights and obligations in a way that is consistent with the principle of equality of belligerents. This provides incentives for armed groups to respect the IHL rules they have themselves negotiated. However, even upon the conclusion of such agreements, it remains unclear which legal regime governs them. This paper will argue that special agreements are governed by international law instead of domestic law or a sui generis legal regime.