Regulating a 'state of exception' in Times of War: The Legal Regime Applicable to Derogation in Situations of Armed Conflict.

The article examines the concept and legal regime of derogation—the temporary suspension of certain rights—in international humanitarian law (IHL), focusing primarily on Article 5 of the Fourth Geneva Convention (GC IV). While derogation is generally alien to IHL, which governs armed conflict situations inherently considered states of exception, Article 5 and Article 54(5) of the First Additional Protocol explicitly allow limited derogation from certain rights of protected persons when justified by national or military security concerns. Such derogations are subject to strict substantive and procedural constraints, including the necessity and proportionality of measures, temporal limits, and the non-derogability of fundamental protections such as humane treatment and fair trial. The article also contrasts derogation in IHL with that in international human rights law (IHRL), noting differences in requirements like official emergency declarations, and emphasizes that derogation must be narrowly construed to prevent abuse and uphold core humanitarian principles during armed conflicts.