Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?

Two recent International Court of Justice decisions determine that international human rights law (IHRL) applies in occupied territories, in addition to international humanitarian law (IHL). These decisions reinforce the convergence of these two bodies of law. Advocates of the application of IHRL in occupied territories argue that it serves the interests of a population living under occupation. However, experience shows that, in these circumstances, IHRL can be used to actually undermine the protection of rights and legitimize their violation. The decisions of Israel's High Court of Justice illustrate how the introduction of rights analysis into the context of occupation abstracts and extrapolates from this context, placing both occupiers and occupied on a purportedly equal plane. This move upsets the built-in balance of IHL, which ensures special protection to people living under occupation, and widens the justification for limiting their rights beyond the scope of a strict interpretation of IHL. The different meanings ascribed to proportionality in these two bodies of law are conflated, further contributing to this imbalance. The attempt to bring the 'rule' of rights into the 'exception' of the occupation, rather than alleviating the conditions of people living under occupation may render rights part of the occupation structure.