Some discussion has taken place with regards to whether human rights treaty bodies along with the Human Rights Council, all part of the United National human rights machinery, apply and develop international humanitarian law in time of armed conflict and occupation, in concurrence with international human rights law (IHRL). Even less, if any, discussion has been undertaken with respect to the concurrent application of IHRL with other bodies of public international law by human rights treaty bodies, and the way in which these bodies treat other instruments of public international law. Although reference to areas and rules of international law beyond IHRL by UN human rights bodies, especially Special Rapporteurs and fact-finding missions established by the Human Rights Council is not uncommon, it remains unclear to what extent the Committee can or should engage with these bodies of law, and how it should do so, if at all? what analysis it can or should provide when it makes such references, beyond IHRL? and what legal value do the pronouncements by quasi-judicial thematic bodies such as those of the UN human rights system have in terms of creation of precedent and the reliance thereon by other judicial and quasi-judicial bodies?
The Committee on the Elimination of Racial Discrimination’s recent concluding observations on Israel are an interesting case in point for testing these questions. The observations invoke the application of other frameworks of international law, beyond IHRL, namely: (1) the international law on apartheid, a reference to which is also included in Article 3 of the Convention on the Elimination of Racial Discrimination; (2) international law’s counter-terrorism law-enforcement framework; and (3) international humanitarian law, and in particular the law of belligerent occupation.