关键词: 武装冲突, “特别法优于一般法”原则, 国际人道法, 国际人权法, 敌对行为范式, 执法范式

Abstract:

According to the Pufendorf’s system of Natural Law Theory, international law is a set of absolute natural obligations to others, and state relations are based on a balance between the free exercise of natural rights and the observance of moral obligations. The trade-off between military necessity and humanitarian considerations on the part of parties and combatants in armed conflicts is one manifestation of this. They are not only bound by international humanitarian law, but also rely on natural law to guide their actions. The relationship between international humanitarian law and international human rights law is an important issue when the legal vacuum comes out. The conflict between Russia and Ukraine further reflects the urgency of this issue. In situations of armed conflicts, to choose the hostilities paradigm or the law enforcement paradigm to apply with priority based on a comprehensive consideration of the various elements of the facts is the key to using the principle of “lex specialis derogat legi generali” to distinguish between international humanitarian law and international human rights law. In most cases, there is no real normative conflict between international humanitarian law and international human rights law, and the two can be applied in parallel. Which can become the lex specialis to be applied preferentially, then needs concrete analyses. In addition, the principle of “lex specialis derogat legi generali” can also provide an operational and objective analysis framework for military commanders who need to make values trade-offs and policy choices in practice. According to the above-mentioned theory, China can put forward reasonable proposals from three aspects, i.e., legal compliance, accountability and improvement of norms, in order to deal with the humanitarian crisis and humanitarian consequences brought about by armed conflicts.

Key words: armed conflicts, principle of “lex specialis derogat legi generali”, international humanitarian law, international human rights law, hostilities paradigm, law enforcement paradigm