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The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body

Published online by Cambridge University Press:  27 March 2009

Françoise J. Hampson
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Abstract

The debate about the simultaneous applicability of international humanitarian law and human rights law also affects human rights treaty bodies. The article first considers the difficulty for a human rights body in determining whether international humanitarian law is applicable; second, it examines the problems in practice in applying the lex specialis doctrine and the question of derogation in this particular context. The author finally outlines the impact of the debate as to the extent of extraterritorial applicability of human rights law.

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Type
Human Rights
Information
International Review of the Red Cross , Volume 90 , Issue 871: Human Rights , September 2008 , pp. 549 - 572
Copyright
Copyright © 2008 International Committee of the Red Cross

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References

1 For example, Suter, K. D., ‘An enquiry into the meaning of the phrase “human rights in armed conflicts”’, Revue de Droit Pénal Militaire et de Droit de la Guerre, Vol. 15 (3–4) (1976), p. 393Google Scholar; Meyrowitz, Henry, ‘a Guerre et les droits de l' homme’, Revue du Droit Public et de la Science Politique en France et à l'Etranger, Vol. 5 (1972), p. 1059Google Scholar; Draper, G. I. A. D., ‘The relationship between the human rights regime and the law of armed conflict’, Israel Yearbook on Human Rights, Vol. 1 (1971), p. 191Google Scholar. It is noteworthy that all these authors would have seen themselves as experts in IHL and not in human rights law. See also Schindler, Dietrich, ‘Human rights and humanitarian law: interrelationships of the law’, American University Law Review, Vol. 31 (1982), p. 935Google Scholar, and, more recently, Frowein, Jochen, ‘The relationship between human rights regimes and regimes of belligerent occupation’, Israël Yearbook on Human Rights, 1 (1998)Google Scholar; Meron, Theodor, ‘The humanization of humanitarian law’, American Journal of International Law, Vol. 94 (2000), 239CrossRefGoogle Scholar; Heintze, Heinz-Jochen, ‘On the relationship between human rights law protection and international humanitarian law’, International Review of the Red Cross, Vol. 86 (865) (2004), p. 789CrossRefGoogle Scholar; Watkin, Ken, ‘Controlling the use of force: a role for human rights norms in contemporary armed conflict’, American Journal of International Law, Vol. 98 (2004), p. 1CrossRefGoogle Scholar, and the special issue on parallel applicability of HR and IHL, Israel Law Review, Vol. 40 (2) (2007), especially the contributions by David Kretzmer, Rotem Giladi and Yuval Shany; Cordula Droege; and Noam Lubell.

2 A notable early example was the report by Human Rights Watch (HRW) on the Gulf War 1990–1. Human Rights Watch, Needless Deaths in the Gulf War, 1991.

3 ICJ, Legality or Threat of Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para. 25; ICJ, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106; ICJ, Case concerning armed activity on the territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, paras. 216–220.

4 Human Rights Committee, CCPR/CO/78/ISR; CCPR/CO/79/Add.93; CCPR/CO/78/ISR, para. 11.

5 Dennis, Michael J., ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, American Journal of International Law, Vol. 99 (2005), p. 119CrossRefGoogle Scholar; Human Rights Committee, CCPR/C/USA/3, Annex 1; CCPR/C/USA/CO/3, para. 3. It should be noted that, at the time the United States ratified the ICCPR, it was clear that the HRC regarded the Covenant as applicable even during situations of conflict, but the United States did not enter a reservation to such applicability.

6 The two arguments are separate but interrelated in their practical effect. See section 5 below.

7 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951.

8 Ibid., pp. 138–9.

9 See generally Françoise J. Hampson, ‘Other areas of customary law in relation to the Study’, in E. Wilmshurst and S. Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, pp. 68–72, and references in notes 4 and 5 above.

10 The most relevant of the Special Procedures in this context are the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, the Working Group on Enforced or Involuntary Disappearances and the Working Group on Arbitrary Detention. Others may occasionally have to deal with the issue. The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is not included, since such treatment is prohibited under both IHL and human rights law. On the Commissioner for Human Rights, see www.coe.int/t/commissioner/default_en.asp (last visited 21 October 2008).

11 Torture or other ill-treatment of detainees is prohibited in the case of prisoners of war (Geneva Convention III, Art. 17), civilian detainees or internees (Geneva Convention IV, Art. 32), detainees not otherwise protected (Additional Protocol I of 1977, Art. 75) and all those detained in non-international armed conflict (Common Art. 3 of the Geneva Conventions and Protocol II of 1977, Art. 4).

12 On the Human Rights Committee, see www2.ohchr.org/english/bodies/hrc/index.htm (last visited 21 October 2008); the Committee on Economic, Social and Cultural Rights, available at www2.ohchr.org/english/bodies/cescr/index.htm; the African Commission, available at www.achpr.org/english/_info/news_en.html; the African Court does not yet appear to have made any pronouncements, see www.aict-ctia.org/courts_conti/achpr/achpr_home.html; the Inter-American Commission, available at http://cidh.oas.org/DefaultE.htm; the Inter-American Court, available at www.corteidh.or.cr/index.cfm?CFID=367321&CFTOKEN=81159529; and the European Court of Human Rights, available at www.echr.coe.int/echr (all sites last visited 20 October 2008).

13 Bodies with a monitoring function usually issue General Comments, setting out their interpretation of a right or concept in the treaty in question, and will also provide Concluding Observations following the scrutiny of a state's report and the dialogue with state representatives. Generally speaking, although there are exceptions, only if a human rights body has to deal with individual applications does it have to reach a determination as to whether the treaty has been violated. An Optional Protocol to the ICESCR was adopted without a vote on 18 June 2008, annexed to a resolution of the Human Rights Council (A/HRC/8/L.2/Rev.1/Corr.1). If the General Assembly adopts the text, it will provide for the right of individual petition when it enters into force.

14 ICRC, Commentaries to the Geneva Conventions of 1949, common Art. 2, available at www.icrc.org/ihl.nsf/COM/365-570005?OpenDocument (last visited 20 October 2008). This was important in the case of the Falklands/Malvinas conflict, to which Margaret Thatcher, the UK Prime Minister, initially stated that the Geneva Conventions were not applicable as there had been no declaration of war. This view was rapidly corrected.

15 E.g. the border clash between Ecuador and Peru in 1997; see John R. Groves, ‘Effective engagement; the case of Ecuador’, Joint Force Quarterly, Autumn 2000, p. 46, available at www.dtic.mil/doctrine/jel/jfq_pubs/1026.pdf (last visited 21 October 2008).

16 See above note 14, Art. 2(1).

17 Yoram Dinstein, War, Aggression and Self-Defence, Cambridge University Press, Cambridge, 4th edn, 2005, pp. 14–15.

18 It is not clear whether the issue of consent is relevant to the characterization of the attack as constituting an armed conflict although, if the attack does constitute an armed conflict, consent would be likely to affect the characterization of the conflict; see further below.

19 1 March 2008; see ‘Colombia's cross-border strike on FARC irks neighbors’, Christian Science Monitor, 3 March 2008, available at www.csmonitor.com/2008/0303/p04s02-woam.html (last visited 21 October 2008). A statement of the Colombian Foreign Ministry said that ‘Colombia did not violate sovereignty but acted according to the principle of legitimate defense’.

20 E.g. the situation which has arisen in the Israeli-occupied Palestinian Territories since 2000 during the second intifada.

21 In order for territory to be occupied, it must be under the ‘authority’ of the occupier. 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Annex, Art. 42. It could be argued that a decision that there is an armed conflict necessarily means that the occupier does not exercise the requisite control. It is submitted that this is an oversimplification. In many internal armed conflicts, the state continues to exercise the control necessary, for example, to provide basic services to the population. It is suggested that, where conflict breaks out in occupied territory, it should be a matter of fact and not of law whether the occupier remains in control of the territory as a whole.

22 ICRC Commentaries, above note 14, common Art. 3, pp. 49–50.

23 Protocol II of 1977, Art. 1(2) (emphasis added).

24 ICTY, Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 and IT-96-23/1 (Appeals Chamber), 12 June 2002, para. 56, citing Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.

25 The UK Foreign and Commonwealth Office maintained that at no time did the situation cross the threshold of common Art. 3. Other authorities have suggested, off the record, that at certain times and in certain places, the situation may have crossed the threshold.

26 See, e.g., Article 2 of the Geneva Conventions of 1949.

27 Common Article 3 of the Geneva Conventions of 1949, and Article 3 of Protocol II of 1977.

28 For example, the Russian Constitutional Court characterized the first Chechen war as coming within not merely common Article 3, but Protocol II. It also pointed out that the Russian Federation had adopted no domestic legislation enabling it to give effect to Protocol II. See Judgment of the Constitutional Court of the Russian Federation of 31 July 1995 on the constitutionality of the Presidential Decrees and the Resolutions of the Federal Government concerning the situation in Chechnya, European Commission for Democracy through Law of the Council of Europe, CDL-INF (96) 1.

29 Human Rights Watch set out the arguments on both sides in Why They Died: Civilian Casualties in Lebanon during the 2006 War, Vol. 19 (5) (E), September 2007. Amnesty International cited provisions only applicable in international conflicts, without providing an explanation. Amnesty International, Israel and Hizbullah Must Spare Civilians: Obligations under International Humanitarian Law of the Parties to the Conflict in Israel and Lebanon, MDE 15/070/2006, 26 July 2006. The Commission of Inquiry on Lebanon, established by the Human Rights Council, characterized the conflict as international, without explanation or discussion. Human Rights Council, Commission of Inquiry on Lebanon, A/HRC/3/2, 23 November 2006, para. 12.

30 Above note 19.

31 In the case of coalition operations (e.g., ISAF), a further question is whether the members of the coalition agree between themselves as to the characterization of the conflict.

32 If the attack in Yemen (see ‘CIA ‘killed al-Qaeda suspects’ in Yemen’, BBC, 5 November 2002, available at http://news.bbc.co.uk/1/hi/world/middle_east/2402479.stm (last visited 21 October 2008)) was an armed conflict, it would be important to know whether the consent of the Yemeni government was obtained prior to the operation and whether it was freely given. See Human Rights Committee, CCPR/C/SR.2282, para. 43.

33 Tadic, above note 22, and Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2005, I, ch. 44.

34 Statute of the International Criminal Court, Art. 8(2)(e).

35 Henckaerts and Doswald-Beck, above note 33.

36 Bellinger, John B. III and Haynes, William J. II, ‘A US government response to the ICRC study Customary International Humanitarian Law’, International Review of the Red Cross, Vol. 89 (866) (2007), pp. 443–71Google Scholar.

37 Trans: ‘the more specific law has precedence over the more general law’. It is not clear whether this principle only applies where there is a conflict between the two rules.

38 See generally, Prud'homme, Nancie, ‘Lex specialis: oversimplifying a more complex and multifaceted relationship?’ Israel Law Review, Vol. 40 (2) (2007), pp. 355–95CrossRefGoogle Scholar.

39 It was a striking feature of those negotiations that often the disagreement was within delegations rather than between them. The naval elements in delegations tended to be in basic agreement with one another but disagreed with those representing fishing interests or attempting to enlarge the areas of water over which coastal states could exercise jurisdiction.

40 Above note 3, and see further below.

41 Roberta Arnold and Noëlle Quénivet (eds.), International Humanitarian Law and Human Rights Law, Brill/Martinus Nijhoff, Leiden, 2008.

42 Many human rights treaty provisions set out the interest protected and then provide that any limitations must be justified by reference to a list of purposes or goals, which list varies between different articles and different treaties, necessary to the pursuit of the goal in question and proportionate to its pursuit. In this way, human rights law provides a mechanism to establish a balance between the claims of individuals and those of others or the community itself. Limitation clauses must be distinguished from the derogation clause, as to which see further below.

43 See, e.g., Human Rights Committee, Suarez de Guerrero v. Colombia (45/79), Communication No. R.11/45, 5 February 1979, UN Doc. Supp. No. 40 (A/37/40) at 137 (1982); ECtHR, Ergi v. Turkey, 23818/94, Judgment of 28/7/98; ECtHR, Gulec v. Turkey, 21593/93, Judgment of 27 July 1998; ECtHR, Isayeva and others v. Russia, 57947-9/00, Judgment of 24 February 2005; Inter-Am.Ct.H.R. (Ser. C), Case of Plan de Sãnchez Massacre v. Guatemala, Judgment of 29 April 2004.

44 See generally CUDIH, ‘Expert Meeting on the Right to Life in Armed Conflicts and Situations of Occupation’, 1–2 September 2005, available at www.adh-geneve.ch/recherche/pdf/travaux/5/rapport_droit_vie.pdf (last visited 20 October 2008).

45 It is not being denied that knowledge of human rights law may enable a state to act so as to avoid a subsequent finding of violation of human rights law. The state can generally predict the elements which will be considered relevant but it may not always be able to evaluate those elements in such a way as to reach the same conclusion as a human rights body.

46 Similarly, it is not being denied that IHL is also enforced after the event, as when a state carries out an investigation to determine whether a violation of IHL has been committed and, where necessary, institutes criminal proceedings. The determination that a violation of IHL has occurred will be based on what was known or ought to have been known to the relevant person at the time the decision was taken.

47 Above note 3.

48 See generally Human Rights Committee, General Comment No. 29, CCPR/C/21/Rev.1/Add.11.

49 ICCPR, Art. 4(1). The ECHR derogation clause applies to ‘war or other public emergency threatening the life of the nation’. ECHR, Art. 15(1). The analogous clause in the IACHR provides ‘In time of war, public danger, or other emergency that threatens the independence or security of a State Party’. IACHR, Art. 27(1).

50 ECommnHR, Greek Colonels' Case, Ybk 12 bis, 1970.

51 Higgins, Rosalyn, ‘Derogations under Human Rights Treaties’, British Yearbook of International Law, Vol. 48 (1976–7), p. 281CrossRefGoogle Scholar.

52 Greek Colonels' Case, above note 50.

53 ECtHR, Aksoy v. Turkey, 21987/93, Judgment of 18 December 1996.

54 ICCPR, Art. 4(2); ECHR, Art. 15(2); IACHR, Art. 27(2). There is no equivalent provision in the African Charter of Human and Peoples' Rights.

55 Above note 48.

56 See note 48, para. 16; see also Inter-Am.Ct.H.R., Habeas Corpus in Emergency Situations (American Convention on Human Rights, Arts. 27(2), 25(1) and 7(6)), Advisory Opinion OC-8/87, 30 January 1987, (Ser. A) No. 8 (1987).

57 Ibid.

58 Human Rights Committee, Concluding Observations, CCPR/CO/76/EGY, para. 6.

59 Russia has derogated from neither the ECHR nor the ICCPR with regard to the situation in Chechnya.

60 E.g., Isayeva, above note 43.

61 That does not appear to have happened yet in the Chechen cases before the ECtHR, in that the facts suggest that there has been a violation of both human rights law and IHL.

62 Examples of the constructive use of IHL can be found in the case-law of the Inter-America Commission and Court of Human Rights, such as IACHR, Abella v. Argentina, Case 11.137, Report No. 55/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (1997), and IACtHR, Bámaca Velásquez Case, Judgment of 25 November 2000, (Ser. C) No. 70 (2000).

63 ECHR, Art. 15(2).

64 ECtHR, Lawless v. Ireland, 332/57, Judgment of 1 July 1961. It is clear from the reasoning of the Court in Ireland v. UK, 5310/71, ECtHR, Judgment of 18 January 1978, that internment in Northern Ireland would have been unlawful but for the notice of derogation. In Brogan & others v. UK, 11209/84, Judgment of 29 November 1988, the ECtHR found a violation of Article 5 of the Convention on account of the length of detention (rather than the ground). The United Kingdom then submitted a notice of derogation and detention under the same legislation was subsequently found not to violate the Convention, taking account of the derogation, in Brannigan & McBride v. UK, 14553-4/89, ECtHR, Judgment of 24 May 1993. Perhaps the most dramatic example is the Commission decision in Cyprus v. Turkey, 6780/74 & 6950/75, ECtHR, Report of the Commission, adopted on 10 July 1976, in which the Commission determined that, in the absence of a notice of derogation, detention of POWs during an international armed conflict was a violation of the Convention.

65 Two dissenting members of the Commission in Cyprus v. Turkey, ibid.

66 In addition to the case law of the Inter-American Commission on Human Rights, acting under the ADHR, see note 67 below, the former European Commission and the European Court of Human Rights have dealt with a number of individual applications against Turkey arising out of the invasion and subsequent occupation of northern Cyprus, most notably Loizidou v. Turkey, 15318/89, ECtHR, Judgment of 18 December 1996. Other situations arguably in the international armed conflict category include the position of Russian forces in Transdniestra, ECtHR, Ilascu & others v. Moldova & the Russian Federation, with Romania intervening, 48787/99, Judgment of 8 July 2004; and Turkish forces in northern Iraq, ECtHR, Issa & others v. Turkey, 31821/96, Admissibility Decision of 30 May 2000, Decision of Second Chamber, 16 November 2004.

67 US operations in Grenada were at issue in IACHR, Disabled Peoples' International, Case 9213, OEA/ser. L/V/II.71, doc. 9 rev. 1 (1987) (Annual Report 1986–1987); IACHR, Coard and others v. the United States, Report No. 109/99, Case No. 10,951, 29 September 1999, Ann. Rep. IACHR 1999; and the invasion of Panama in IACHR, Salas and others v. the United States, Report No. 31/93, Case No. 10,573, 14 October 1993, Ann. Rep. IACHR 1993, 312. The United States disputed the jurisdiction of the Inter-American Commission.

68 Above note 64.

69 See the next section.

70 E.g., ECommnHR, X v. FRG, 1611/62, 6 Ybk ECHR 158, p. 169; ECommnHR, W. M. v. Denmark, 17392/90, admissibility decision of 14 October 1992. For a comprehensive review of the ECHR case law on the extraterritorial applicability of the Convention, see Al-Skeini & others v. Secretary of State for Defence, [2004] EWHC 2911 (High Court), and [2005] EWCA Civ 1609 (Court of Appeal).

71 See generally, Fons Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties, Intersentia, Antwerp 2004. This paper does not consider the extraterritorial applicability of human rights law to UN forces or UN-authorized forces. In addition to the issues discussed here, those situations raise the question of who is responsible for the acts of national contingent or a force commander, as to which see ECtHR, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, 71412/01 and 78166/01, Admissibility decision of 2 May 2007.

72 Above note 3.

73 Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 10. When examining some State reports, the HRC has expressly referred to occupation; in other cases, it has described a form of control that amounts to occupation, e.g., areas in Lebanon over which Israel exercised effective control, Concluding Observations, initial report of Israel, CCPR/C/79/Add.93, 18 August 1998, para. 10; contrast, Concluding observations – Lebanon, UN Doc.CCPR/C/79/Add.78, paras. 4–5 (1977), which refers to occupation; and, alleged violations in Lebanon at the hands of Syrian security forces, Concluding Observations, Second report of Syria, CCPR/CO/71/SYR, 24 April 2001, para. 10. The issue of Moroccan control over Western Sahara has been raised principally in the context of the exercise of the right to self-determination. See Concluding Observations, Fourth periodic report of Morocco, CCPR/C/79/Add.113, 1 November 1999, para. 9 and Fifth periodic report, CCPR/CO/82/MAR, 1 December 2004, paras. 8 and 18.

74 Loizidou, above note 66.

75 Hague Convention IV Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, Art. 42.

76 In the Al-Skeini case, above note 70, certain judges reached the conclusion that Basra was not under the effective control of the British forces for the purposes of the applicability of the European Convention on Human Rights, even though it was probably occupied territory for the purposes of IHL. See also Al-Skeini, [2007] UKHL 26, opinion of Lord Rodger of Earlsferry, para. 83.

77 Issa, note 66 above.

78 ECtHR, Ilascu and others v. Russia, Moldova, 48787/99, Judgment of 8 July 2004.

79 Russian personnel had effected the initial detention, even though the applicants were subsequently transferred to Transdniestran authorities.

80 Georgia has submitted an inter-state application against Russia arising out of the recent conflict between the two states. Individual applications may well be brought against both Georgia and Russia.

81 Al-Skeini, above notes 70 and 76. See also UK House of Lords, Al Jeddah v. Secretary of State for Defence, [2007] UKHL 58, but it should be noted that he was detained after the passage of SC Res. 1546, 8 June 2004, which suggested that the Security Council, at least, thought that Iraq was no longer occupied, legally speaking.

82 E.g., Human Rights Commission, Lopez Burgos v. Uruguay, UN Doc. A/36/40, 176; Communication No.52/1979, CCPR/C/13/D/52/1979, 29 July 1981; IACHR, Coard and others, Report No. 109/99, Case No. 10,951, 29 September 1999, Ann. Rep. IACHR 1999; ECtHR, Öçalan v. Turkey, 46221/99, Judgment of 12 May 2005.

83 Above note 81. In Afghanistan, systems have been put in place to provide review of detention.

84 E.g., see Lopez Burgos, above note 82.

85 ECtHR, Behrami and Behrami v. France, 71412/01, and Saramati v. France, Germany and Norway, 78166/01, Grand Chamber, Admissibility decision of 2 May 2007.

86 See generally, Jelena Pejic, ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’, International Review of the Red Cross, Vol. 87 (858) (2005), p. 375; see also Henckaerts and Doswald-Beck, above note 33.

87 ECtHR, Bankovic and others v. Belgium and 16 other NATO States, 52207/99, Grand Chamber Admissibility Decision of 12 December 2001.

88 ECommnHR, Isiyok v. Turkey, 22309/93, Admissibility decision of 3 April 1995; Friendly settlement of 31 October 1997.

89 Bankovic, above note 87.

90 EWCA, The Queen on the Application of ‘B’ & Ors v. Secretary of State for the Foreign and Commonwealth Office, [2004] EWCA Civ 1344, para. 59; Al-Skeini, above note 70, High Court.

91 ECommnHR, Cyprus v. Turkey, 6780/74 and 6950/75, Report of the Commission, Adopted on 10 July 1976; Ergi, above note 43.

92 Bankovic, above note 87; Behrami & Behrami and Saramati, above note 71.

93 Above note 67.

94 Interim measures were granted on 12 August 2008 under Rule 39 of the Rules of the Court, available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=839100&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (last visited 21 October 2008). It should also be noted that the European Court of Human Rights has announced that it has received 2,729 applications from South Ossetians against Georgia; http://cmiskp.echr.coe.int/tkp197/view.asp?item=13&portal=hbkm&action=html&highlight=&sessionid=15237971&skin=hudoc-pr-en (last visited 27 October 2008).