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The No-Gaps Approach to Parallel Application in the Context of the War on Terror

Published online by Cambridge University Press:  04 July 2014

Fionnuala Ni Aolàin
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Abstract

This article asserts that a challenge exists in deflecting the prevailing view that a general gap of legal applicability exists in respect of legal regulation of the war on terror. This “gap” is articulated by a focus on a new phenomena—namely the emergence of Al Qaeda as a non-nationally motivated, transnational terrorist organization whose actions and actors do not “fit” existing legal norms and sanctions. In addressing that challenge, this article will rebut the argument that suggests a legal lacuna exists, and that no appropriate legal tools are available to states and international organizations as they confront the post September 11th context. In particular, the argument asserts that existing legal norms provide sufficient coverage to respond to the conflicts experienced in the contemporary moment, as well as to the state and non-state entities participating in them. The article suggests that clarity about the boundaries between the legal regime of international human rights law and international humanitarian law would assist closing off perceived regulatory gaps. It contends that the usual rationale given in favor of parallel application, namely higher protection for the victims of conflict, substantially underestimates its other valuable policy and instrumental benefits. Specifically, the traditionally vaunted victim centered rationale does not sufficiently weigh the value of affirming consistent rule of law coverage to situations of conflict. The article asserts that while further regulatory measures may be possible and even desirable to confront the contemporary challenges of conflict forms (including terrorism), a combined or dynamic approach to the law of war and international human rights law provides sufficient traction and norm content to address and be relevant to present needs.

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Research Article
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Israel Law Review , Volume 40 , Issue 2 , Summer 2007 , pp. 563 - 591
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Professor of Law and Director Transitional Justice Institute, University of Ulster and Dorsey & Whitney Chair in Law University of Minnesota Law School.

My thanks to Professor David Kretzmer, Professor Dominic McGoldrick, and Dr. Shane Darcy for comments on an earlier draft of this article. My thanks to Catherine Turner, Transitional Justice Institute for research assistance. All faults remaining lie with the author.

References

1 The ICJ found that:

…some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, 2004 I.C.J. 163 (July 9), at para. 106 [hereinafter Wall case].

2 See National Security Strategy of the United States of America March 2006, available at http://www.whitehouse.gov/nsc/nss/2006/index.html (last visited June 4, 2007)(this extensive document is the first comprehensive strategy document issued since September 2002). “Our strong preference and common practice is to address proliferation concerns through international diplomacy, in concert with key allies and regional partners. If necessary, however, under long-standing principles of self defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy's attacks” id. at 23; Franck, T.M., Preemption, Prevention and Anticipatory Self-Defense: New Law Regulating Recourse to Force?, 27 Hastings Int'l & Comp. L. Rev. 425 (2004)Google Scholar; Bell, Christine, Campbell, Colm, & Aolàin, Fionnuala Ni, The Battle for Transitional Justice: Hegemony, Iraq and International Law, in Judges, Transition and Human Rights Cultures: Essays in Honor of Stephen Livingstone 147 (Morison, John, McEvoy, Kieran, & Anthony, Gordon eds., 2006)Google Scholar.

3 This different kind of war has been articulated by the President of the United States in the following way:

The President has made very plain to the American people that the war on terrorism is not a traditional war …in the sense that there is one known battlefield or one known nation or one known region. The President has made clear that we will fight the war on terrorism wherever we need to fight the war on terrorism … this is a different kind of war, with a different kind of battlefield, where known political boundaries, which previously existed in traditional wars do not exist in the war on terrorism.

Ari Fleischer, White House Press Secretary, Press Gaggle, November 3, 2002, available at http://www.whitehouse.gov/news/releases/2002/11/20021105-2.html#3 (last visited June 4, 2007).

4 See UN General Assembly Ad Hoc Committee on International Terrorism, Observations of States Submitted in Accordance with GA Res. 3034 (XXVII) UN Doc. A/AC. 160/1 (May 16, 1973) and UN Doc. A/AC.160/1/Add.19 (June 12, 1973). A draft comprehensive convention on international terrorism continues to be pursued. See Promotion and Protection of Human Rights, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, UN Doc. E/CN.4/2006/98 (Dec. 28, 2005). Note the reliance in this report on the terminology used in S.C. Res. 1566, ¶ 3, UN Doc. S/RES/1566 (Oct. 8, 2004).

5 See Hamdan v. Rumsfleld, 126 S. Ct. 2749 (2006)(finding Common Article 3 to the Geneva Conventions applicable by accepting the Geneva Conventions to be self-executing treaties); HCJ 769/02 The Public Committee Against Torture in Israel v. The Government of the State of Israel [December 14, 2006] (not yet published)(finding an international armed conflict applicable).

6 Aolàin, Fionnuala Ni, Balancing Human Rights: International Legal Responses to Terrorism in the Wake of September 11th , Isr.Y.B. Hum. Rts. 33 (2003)Google Scholar.

7 Gross, Oren & Aolàin, Fionnuala Ni, Law in Times of Crisis 247–326 Google Scholar (2006)(assessing the role of human rights law in responding to crisis provoked by terrorism for states, and arguing that the proliferation of suppression conventions is a direct result of the failure to agree a comprehensive treaty).

8 Aolàin, Fionnuala Ni, The Emergence of Diversity—Differences in Human Rights Jurisprudence, 19 Fordham Int'l L. J. 101 (1995)Google Scholar.

9 With respect to US attempts to rewrite and/or reinterpret generally understood treaty provisions on for example, torture see Greenberg, Karen J. & Dratel, Joshua L., The Torture Papers: The Road to Abu Ghraib (2005)CrossRefGoogle Scholar; on US attempts to re-write understandings of Common Article 3 post the Hamdan decision; see the Military Commissions Act (2006); Waddington, Richard, Red Cross Says Concerned at U.S. Interrogation Law, Reuters, Oct. 19, 2006, at 1 Google Scholar (reporting the ICRC's concern that the Military Commissions Act of 2006 could “weaken basic guarantees under the Geneva Conventions that …protect everybody from humiliating and degrading treatment”). See also Britain Said to Seek Weaker Torture, Washington Post, November 2, 2006, at A13 Google Scholar.

10 See, e.g., The Administration's inconsistent approach to Iraq, Mandate: SC Res. 1483, UN Doc. S/RES/1483 (May 22, 2003) recognizes the United Kingdom and the United States as occupying forces under unified command (“the Authority”). It is also apparent that the early on during its occupation of Iraq the US went to considerable efforts to downplay the application of certain war rules. See Roberts, Adam, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int'l L. 580, 608–618 (2006)CrossRefGoogle Scholar.

11 Portions of this analysis are drawn on Gross & Ni Aolàin, supra note 7.

12 Warbrick, Colin, The Principles of the European Convention on Human Rights and the Response of States to Terrorism, 3 Eur. Hum. Rts. L. Rev. 287 (2002)Google Scholar.

13 Id. at 288. See also Ireland v. United Kingdom, 1976 Y.B. Eur. Conv. on H.R., at para 19 (Eur. Commission on Human Rights.)(“It [The Court] is not required to rule on the terrorist activities in the six counties of individuals or groups, activities that are clearly in disregard of human rights.”)

14 Fox, Campbell and Hartley v. United Kingdom, App. Nos 12244/86, 12245/86 and 12383/86, 13 Eur. H.R. Rep. 157 (1991)(Commission Report), at para. 28.

15 Klass v. Germany 28 Eur. Ct. H.R. (ser. A) at 5, (1978); App. No. 5029/71 2 Eur. H.R. Rep. 214 (1978), at para. 48

16 McCann and Others v. United Kingdom, App. No. 17579/90, 21 Eur. H.R. Rep. 97 (1996), at para. 159. See Aolàin, Fionnuala Ni, The Politics of Force—Conflict Management and State Violence in Northern Ireland (2000)Google Scholar; Aolàin, Fionnuala Ni, The Evolving Jurisprudence of the European Convention Concerning the Right to Life, 19 Neth. Q. Hum. Rts. 21 (2001)CrossRefGoogle Scholar.

17 Chahal v. United Kingdom, App. No. 22414/93, 23 Eur. H.R. Rep. 413 (1996), at para. 80; Aolàin, Fionnuala Ni, The European Convention on Human Rights and Its Prohibition on Torture, in Torture: A Collection 213 (Levinson, Sanford ed., 2004)Google Scholar.

18 Shamayev v. Georgia, 2005-III Eur. Ct. H.R. 233.

19 Gavouneli, Maria, Shamayev and Others v. Georgia & Russia, 100 Am. J. Int'l L. 674, 679 (2006)CrossRefGoogle Scholar.

20 Shamayev v. Georgia, supra note 18, at para 335.

21 Note however that there is a significant difference between the Court's approach in derogation cases involving established democracies and those involving state's whose democratic credentials are viewed as “suspect.” See Gross & Ni Aolàin, supra note 7, at 263-289.

22 Lawless v. Ireland, 3 Eur. Ct. H.R. (ser. A) at 55 (1960–1961).

23 McVeigh et al v. United Kingdom, App. No. 8022, 25 Eur. Comm'n H.R. Dec. & Rep. 15 (1981).

24 Brogan and Others v. United Kingdom, 145-B Eur. Ct. H.R. (ser. A) at 16 (1988).

25 Incal v. Turkey, App. No. 22678/93 (1998); 29 Eur. H.R. Rep. 448, (1998-IV); Eur. Ct. H.R. 1547.

26 Öcalan v. Turkey, Eur. Ct. H.R (GC) Judgment of May 12, 2005, available at http://cmiskp.echr.coe.int/tkpl97/view.asp?item=1&portal=hbkm&action=html&highlight=%D6calan&sessionid=1751995&skin=hudoc-en (last visited August 12, 2007).

27 John Murray v. United Kingdom, 22 Eur. H.R. Rep. 29 (1996); John Murray v. United Kingdom, 3 Eur. Ct. H.R. (1996).

28 See also the decision of the Human Rights Committee Kavanagh v. Ireland, Communication No. 1114/2002/Rev.1. UN Doc. CCPR/C/76/D/1114/2002/Rev. 1 (2002).

29 Magee v. United Kingdom, Appl. No. 11234/84 & 11209/84, 31 Eur. H.R. Rep. 822 (2000); 2000-VI Eur. Ct. H.R. 215; Heaney v. Ireland, 2000 XII Eur. Ct. H.R. 675; Appl. No. 34720/97, 33 Eur. H.R. Rep. 12 (2001).

30 Gearty, Conor, The European Court of Human Rights and the Protection of Civil Liberties: An Overview, 52 Camb. L. J. 89 (1993)CrossRefGoogle Scholar.

31 There are some additional issues here illustrated by the case of Brogan and Others v. United Kingdom 145-B Eur. Ct. H.R. (ser. A) at 32 (1988). Here the state had withdrawn a previous notice of derogation facilitating extended detention without access to judicial oversight, but failed to reform the measures at issue. The United Kingdom made a clear plea to the Court to have a de facto exception made for the retention of seven day detention, which the Court ultimately rejected. However, Brogan reveals the inability and/or unwillingness of the Court to address whether, given the scale and length of the derogation and special measures in use, the appropriate measure included humanitarian law norms.

32 Roach, Kent, September 11th Consequences for Canada (2003)Google Scholar.

33 See Gross & Ni Aolàin, supra note 7, at 377-380.

34 Roach, supra note 32, at 21-55.

33 Aolàin, Fionnuala Ni, The Politics of Force—Conflict Management and State Violence in Northern Ireland 218–247 (2000)Google Scholar.

36 Human Rights Committee, General Comment No. 29: States of Emergency (article 4), UN Doc. CCPR/C/21/Rev.1/Add. 11 (July 24, 2001).

37 To compare the American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR]; Article 27(2) does not allow derogation from the following extensive list of rights: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

38 ACHR, id. outlines a wider variety of situations including “time of war, public danger, or other emergency that threatens the independence or security of a State Party.” For the International Covenant on Civil and Political Rights the requirement is simply a “time of public emergency which threatens the life of the nation.”

39 Welfare Party v. Turkey, App. Nos. 41340, 42-44/98, 35 Eur. H.R. Rep. 3, 89; 2003-II Eur. Ct. H.R. 269; Djavit An v. Turkey, 2003 Eur. Ct. H.R. 91; Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) at 257 (1976); Lawless v. Ireland, supra note 22.

40 See also the House of Lords decision in Re A (FC) in which all but one law lord was prepared to accept that there was a public emergency. See McGoldrick, Dominic, The Separation of Powers in the United Kingdom in Terrorists Contexts After 9-11, Democracy, Separation of Powers and the Fight Against Terrorism: Is There a Quest for New Paradigms (2006)Google Scholar. See also “The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights,” UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/1984/4 (1984).

41 See Joseph, Sarah, Human Rights Committee: General Comment 29, 2 Hum. Rts. L. Rev. 84 (2002)Google Scholar.

42 United Kingdom derogation contained in a Note Verbale from the Permanent Representation of the United Kingdom, 18 December 2001, available at http://hei.unige.ch/~clapham/hrdoc/docs/UKderogechrl8dec2001.html (last visited June 4, 2007).

43 See Banković v. Belgium 2001-XII Eur. Ct. H.R. 333 (GC)(“No state has indicated a belief that its extraterritorial actions involved an exercise of jurisdiction within the meaning of Article 1 of the convention by making a derogation pursuant to art. 15 of the convention.”) For example, the United Kingdom has not issued a derogation in respect to its activities in Iraq. See McGoldrick, Dominic, Human Rights and Humanitarian Law in the UK Courts, 40(2) Isr. L. Rev 526 (2007)Google Scholar.

44 Aolàin, Fionnuala Ni, The Emergence of Diversity: Differences in Human Rights Jurisprudence, 19 Ford. Int'l. L. J. 101 (1995)Google Scholar; Gross, Oren & Aolàin, Fionnuala Ni, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 23 Hum. Rts. Q. 625 (2001)CrossRefGoogle Scholar.

43 Ni Aolàin, The Politics Of Force, supra note 16; Ni Aolàin, supra note 6.

46 This is in contrast to the kinds of situations of short bursts of violence which were envisaged by states as most likely to require the derogation privilege, and were generally seen as containable by states within normal criminal and policing frameworks.

47 Protocol I Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3; Protocol II Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. An example of this exclusionary approach lies in the language of Protocol II itself which specifically excluded in its definition of material field of application “situations of internal disturbances and tensions.” Protocol II, Part I, Article 1 (2) (“This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”)

48 Prud'homme, Nancie, Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?, 40(2) Isr. L. Rev. 356 (2007)CrossRefGoogle Scholar.

49 Gross & Ni Aolàin, supra note 7, at 341-349; Nicole Questiaux, Study on the Implication for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, UN Doc. E/CN.4/Sub.2/1982/15 (1982); Oora, Jaime, Human Rights in States of Emergency in International Law (1992)Google Scholar; International Commission of Jurists, States of Emergency: Their Impact on Human Rights (1983).

50 See, e.g., Miguel Castro-Castro Prison v. Peru, Case No. 11.015, Inter-Am. C.H.R., Report No. 43/01 OEA/Ser.L/V/II.111 doc. 20 rev. at 356 (2000); Maqueda v. Argentina Series C No. 18, Judgment of 17 January 1995; Sisters Serrano Cruz v. El Salvador, Case No. 12.312, Inter-Am. C.H.R., report No. 31/01 OEA/Ser.L/V/II.111 doc. 20 rev, at 277 (2000)(esp. paras. 111-120).

51 A good example here in a domestic context is the use by the Supreme Court of Israel of both human rights and humanitarian standards in reviewing the legality of actions taken by the Israeli army in the occupied territories. Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002)Google Scholar.

52 Kretzmer notes a recent tendency of states to activate the applicability of international humanitarian law so as to allow maximum action against so-called combatants. Kretzmer, David, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?, 16 Eur. J. Int'l L. 171 (2005)CrossRefGoogle Scholar. Notably however, Kretzmer's comments focus on actions that could be classified as extraterritorial such as those undertaken by Israel and the US in Yeman and Gaza, where is the arguably no effective control of territory by the state taking the action.

53 A classic example of this approach was the position of the United Kingdom in relation to the status of conflict in Northern Ireland. In this context, the United Kingdom while it signed the Two Protocols Additional to the Geneva Conventions of 1977 it failed to ratify them until the peace process in Northern Ireland was clearly embedded. See Campbell, Colm & Connolly, Ita, A Deadly Complexity: Law, Social Movements and Political Violence, Minn. Int'l. L. J. (forthcoming 2007)Google Scholar.

54 This is notwithstanding that the express language of Common Article 3 does not use the term combatants. See Aolàin, Fionnuala Ni, Hamdan and Common Article 3: Did the Supreme Court Get it Right, 91 Minn. L. Rev. 1525 (2007)Google Scholar.

55 See Israel Supreme Court decision concerning targeted killings: The Public Committee Against Torture in Israel v. The Government of the State of Israel, supra note 5.

56 Human Rights Committee, General Comment 29, supra note 10, at ¶ 10. See generally McGoldrick, Dominic, The Interface between Public Emergency Powers and International Law, 2 Int'l J. Const. L. 380 (2004)Google Scholar.

57 Id.

58 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, ¶ 20, OEA/Ser.L/II.116 (October 22, 2002). See also, General Comment 29, supra note 10.

59 Id. see Introduction, at ¶ 4

60 In this context, note that the ECHR rejected arguments suggesting that the United Kingdom was barred from derogation by virtue of its ICCPR obligations. See Brannigan and McBride, 258 Eur. Ct. H. R. (ser. A) at 31 (1993), at paras. 67-73.

61 See, e.g., Inter-American Commission on Human Rights, Third Report on the Situation of Human Rights in Columbia, OEA/Ser.L/V/II.102 doc 9 rev.1, (Feb. 26, 1999).

62 For example, the decision by the United States following the decision in Hamdan v. Rumsfeld, supra note 5, accepting that Common Article 3 applies to detainees held in American custody.

63 The most potent example of this is in the area of the use of torture, inhuman and degrading treatment. For the US response to this issue see Second Periodic Report of the United States to the Committee Against Torture (May 6, 2005), available at http://www.state.gov/g/drl/rls/45738.htm (last visited June 4, 2007).

64 For a critique of the Supreme Court decision in Hamdan v. Rumsfeld as it relates to the application of Common Article 3 see Ni Aolàin, supra note 54.

65 See Byers, Michael, Pre-Emptive Self Defence: Hegemony, Equality and Strategies of Legal Change, 11 J. Pol. Phil. 171 (2003)CrossRefGoogle Scholar (on the choices available to the hegemonic state when they want to change the law).

66 Campbell, Colm, ‘Wars on Terror’ and Vicarious Hegemons: The UK, International Law and the Northern Ireland Conflict, 54 I.C.L.Q. 321 (2005)CrossRefGoogle Scholar.

67 Case Nos 03-334 and 03- 343, 542 U.S. (2004). See Otty, Tim & Olbourne, Ben, The US Supreme Court and the “War on Terror”: Rasul and Hamdi, 5 Eur. Hum. Rts. L. Rev. 558 (2004)Google Scholar; See also Military Commissions Act (2006); See Red Cross Says Concerned at US Interrogation Law, N.Y. Times, October 19, 2006 Google Scholar.

68 Hamdan v. Rumsfled, supra note 5.

69 See Fitzpatrick, Joan, Speaking Law to Power: The War Against Terrorism and Human Rights, 14 Eur. J. Int'l L. 241 (2003)CrossRefGoogle Scholar.

70 See McGoldrick, supra note 40 which deals with this issue precisely.

71 Campbell, Com & Connolly, Ita, A Model for the ‘War Against Terrorism’? Military Intervention and the 1970 Falls Curfew, 30 J. L. & Soc. 341 (2003)CrossRefGoogle Scholar.

72 Sands, Philippe, Lawless World: America and the Making and Breaking of Global Rules from FDR's Atlantic Charter to George W. Bush'a Illegal War (2005)Google Scholar.

73 A good example is provided by Sands in respect of the apparent U.S. failure to apply Article 75 of the Additional Protocols to the Geneva Conventions to Guantanamo Bay detainees. This according to Sands “… make[s] it impossible for those and other men to get a fair hearing in the United States, and they make it less likely that the U.S. will be able to obtain respect for these standards when its nationals are captured …” Id. at 150.

74 Rodley, Nigel, Negotiating with Torturers, in Torture: Does it Make Us Safer? Is it Ever OK? A Human-Rights Perspective (Roth, Kenneth, Wordens, Minky & Bernstein, A. eds., 2005)Google Scholar; see also Duffy, Helen, The ‘War on Terror’ and the Framework of International Law (2005)CrossRefGoogle Scholar.

75 But see Aolàin, Fionnuala Ni, The Right of Access to Justice in Times of Emergency, War and Terrorism, in The Right of Access to Justice (Francoini, F. ed., 2007)Google Scholar.

76 See Brownlie, Ian Principles of Public International Law 19 (4th ed. 1990)Google Scholar.

77 But see Parks, W. Hays, The United States Military and the Laws of War: Inculcating an Ethos, 69 Soc. Res. 981 (2002)Google Scholar (stressing that the key to compliance with the law of war is not technical adherence to formal legal rules or a more fined tuned appreciation of the relevant conflict norms, but rather the development of a military ethos of respect for the law.).

78 Dennis, Michael. J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99(1) Am. J. Int'l L. 119 (2005)CrossRefGoogle Scholar.

79 The idea being expressed by Prud'homme as, “while it is accepted that IHL can be identified as lex specialis and IHRL as lex generalis in the context of a right to life violation committed during armed conflict, the prevailing norm or applicable legal framework could change in other circumstances.” Prud'homme, supra note 48, at 372.

80 Heintze, H. J., On the Relationship between Human Rights Law Protection and International Humanitarian Law, 856 Int'l Rev. Red Cross 789 (2004)CrossRefGoogle Scholar (In this view drawing on the historical, developmental and ethical linkages between the two legal regimes, an argument is made that each body of law is relevant to the interpretation of the other).

81 Ben-Naftali, Orna & Shany, Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17, 57 (2003)Google Scholar.