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HUMANITARIAN LAW, HUMAN RIGHTS LAW AND THE BIFURCATION OF ARMED CONFLICT

Published online by Cambridge University Press:  30 April 2015

Lawrence Hill-Cawthorne
Lawrence Hill-Cawthorne*
Affiliation:
Lecturer in Law, University of Reading, [email protected].
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Abstract

This article offers a fresh examination of the distinction drawn in international humanitarian law (IHL) between international and non-international armed conflicts. In particular, it considers this issue from the under-explored perspective of the influence of international human rights law (IHRL). It is demonstrated how, over time, the effect of IHRL on this distinction in IHL has changed dramatically. Whereas traditionally IHRL encouraged the partial elimination of the distinction between types of armed conflict, more recently it has been invoked in debates in a manner that would preserve what remains of the distinction. By exploring this important issue, it is hoped that the present article will contribute to the ongoing debates regarding the future development of the law of non-international armed conflict.

Keywords

distinction between international and non-international armed conflictinternational armed conflictinternational humanitarian lawinternational human rights law
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 2 , April 2015 , pp. 293 - 325
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

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6 GCI–IV, ibid, art 2.

7 GCI–IV (n 5), art 3, chapeau. The category of ‘non-international armed conflict’ has come to be seen as comprising various sub-categories: Pejić, J, ‘The Protective Scope of Common Article 3: More Than Meets the Eye’ (2011) 93 IRRC 189, 193–5Google Scholar.

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12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API).

13 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII).

14 APII, ibid, art 1(1).

15 Such conflicts previously were considered non-international in character: Schindler, D, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’ (1979) 163 Recueil des Cours 117, 133Google Scholar.

16 See eg Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (adopted 10 April 1972, entered into force 26 March 1975) 1015 UNTS 163.

17 Regarding the ICTY, see Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995) [127]. Regarding the ICRC, see Henckaerts, J-M and Doswald-Beck, L (eds), Customary International Humanitarian Law Volumes I & II: Rules & Practice (CUP 2005)Google Scholar.

18 See eg Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (arts 8(2)(a) and (b) give the Court jurisdiction over specific war crimes committed in international conflicts, whilst the much shorter arts 8(2)(c) and (e) relate to war crimes in non-international conflicts).

19 Tadić (n 17) [126].

20 See eg Lopez, L, ‘Uncivil Wars: The Challenge of Applying International Humanitarian Law to Internal Armed Conflicts’ (1994) 69 NYULRev 916Google Scholar; Duxbury (n 10); Fleck, D, ‘The Law of Non-International Armed Conflicts’ in Fleck, D (ed), The Handbook of International Humanitarian Law (OUP 2008) 611–13Google Scholar; Crawford (n 9); Mastorodimos, K, ‘The Character of the Conflict in Gaza: Another Argument towards Abolishing the Distinction between International and Non-International Armed Conflicts’ (2010) 12 IntCLRev 437, 464–5Google Scholar.

21 See eg Stewart, JG, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict’ (2003) 85 IRRC 313Google Scholar; Wilmott, D, ‘Removing the Distinction between International and Non-International Armed Conflict in the Rome Statute of the International Criminal Court’ (2004) 5 MelbJIntlL 196Google Scholar; Mastorodimos, ibid.

22 See eg Kolb, R, ‘The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions’ (1998) 38 IRRC 409Google Scholar.

23 See eg 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (adopted 11 December 1868, entered into forced 11 December 1868) 138 CTS (1868–69) 297–9 (French) [6] (‘[t]he Contracting Parties engage mutually to renounce, in case of war among themselves …’); 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land with Annex: Regulations respecting the laws and customs of war on land (adopted 29 July 1899, entered into force September 1900) 187 CTS (1898–9) 429–43, art 2 (‘[t]he provisions contained in the Regulations … are only binding on the Contracting Powers, in case of war between two or more of them’).

24 Dinstein, Y, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, CUP 2010)CrossRefGoogle Scholar 14. Note, however, certain bilateral treaties before that period included provisions relating to the conduct of hostilities, such as the 1785 Treaty of Amity and Commerce between the United States and Prussia: see A Roberts and Guelff, R, Documents on the Laws of War (3rd edn, OUP 2000)Google Scholar 4.

25 For an excellent historical assessment of the origins of the inter-State nature of international law, see Parlett, K, The Individual in the International Legal System (CUP 2011) 10–16CrossRefGoogle Scholar.

26 Oppenheim, L, International Law, A Treatise: Volume II, War and Neutrality (Longmans, Green & Co 1906)Google Scholar 266. Similarly, see Westlake, J, Chapters on the Principles of International Law (CUP 1894)Google Scholar 1 (‘[i]nternational law is the body of rules prevailing between states’).

27 There were rare exceptions to this, for example, in the case of minority protection, which has a long pedigree in international law, albeit being defined differently over time: Thornberry, P, International Law and the Rights of Minorities (OUP 1991)Google Scholar; Nijman, JE, ‘Minorities and Majorities’ in Fassbender, B and Peters, A (eds), The Oxford Handbook of the History of International Law (OUP 2012)Google Scholar.

28 Roth, AH, The Minimum Standard of International Law Applied to Aliens (AW Sijthoff's Uitgeversmaatschappij NV, Leiden 1949)Google Scholar 23 (‘[c]ontrary to the national, whom we have discovered to be practically at the mercy of his own State, the alien enjoys a much more favourable situation’).

29 See eg Hudson, MO, ‘The Central American Court of Justice’ (1932) 26 AJIL 759, 765Google Scholar; Borchard, E, ‘The Access of Individuals to International Courts’ (1930) 24 AJIL 359Google Scholar; Paparinskis, M, The International Minimum Standard and Fair and Equitable Treatment (OUP 2013) 34–6Google Scholar.

30 Similarly, see Y Sandoz, C Swinarski and B Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC/Martinus Nijhoff 1987) [4342]; Crawford, E, ‘Unequal Before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts’ (2007) 20 LJIL 441, 443–4Google Scholar; Bartels, R, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts’ (2009) 91 IRRC 35, 47–8Google Scholar; Kretzmer, D, ‘Rethinking Application of IHL in Non-International Armed Conflicts’ (2009) 42 IsraelLRev 8, 11–13Google Scholar; Akande, D, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Wilmshurst, E (ed), International Law and the Classification of Conflicts (OUP 2012) 32–3Google Scholar.

31 See (n 23). It is noteworthy that a few of the earliest IHL treaties were silent with regard to their scope of application, and certain authorities used this as a basis for arguing that they applied equally in internal conflicts: Sivakumaran (n 4) 30–1.

32 Oppenheim (n 26) 58 (emphasis in original; footnotes omitted). Similarly, see Phillimore, R, Commentaries upon International Law: Volume III (T & JW Johnson & Co 1857)Google Scholar 67.

33 Neff, SC, War the Law of Nations: A General History (CUP 2005) 258–75Google Scholar.

34 Falk, RA, ‘Janus Tormented: The International Law of Internal War’ in Rosenau, JN (ed), International Aspects of Civil Strife (Princeton University Press 1964)Google Scholar 208. See also Higgins, AP (ed), Hall's Treatise on International Law (8th edn, Clarendon Press 1924)Google Scholar 39.

35 There was some disagreement as to whether States were bound to recognize belligerency, although a consensus seems to have arisen for the view that it was within the discretion of the State: Neff (n 33) 264–6; Hall, WE, A Treatise on International Law (3rd edn, Clarendon Press 1890)Google Scholar 34; Lauterpacht, H, Recognition in International Law (CUP 1947)Google Scholar 246.

36 Moir (n 8) 19–21.

37 Charter of the United Nations and Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119, art 1(3).

38 UNGA Res 217 A(III) (10 December 1948). Although non-binding, the UDHR had important ‘moral authority’: Lauterpacht, H, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354, 370–5Google Scholar.

39 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

40 Brilmayer, L, ‘From “Contract” to “Pledge”: The Structure of International Human Rights Agreements’ (2007) 77 BYIL 163Google Scholar. Others have similarly noted the non-traditional structure of human rights obligations: Fitzmaurice, GG, ‘The Law and Procedure of the International Court of Justice 1951–54: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 203, 277Google Scholar; Simma, B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours 217, 242–3Google Scholar; Crawford, J, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Recueil des Cours 325Google Scholar. The International Court of Justice soon recognized the non-traditional character of the obligations under the Genocide Convention: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] ICJ Rep 15, 23.

41 As noted above, however, certain earlier developments in specialized fields did, to different degrees, address intra-State relationships, such as the rules on the protection of minorities in particular States: see (n 27). The post-1945 developments were, however, still unique in their attempt to lay down general human rights standards to apply to all States.

42 Krieger, H, ‘A Conflict of Norms: The Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’ (2006) 11 JCSL 265, 275Google Scholar; Kretzmer (n 30) 9. Admittedly, there are certain categories of non-international armed conflict that do not fit this model, such as those involving two or more non-State armed groups, with no central government involvement.

43 Meron, T, The Humanization of International Law (Martinus Nijhoff 2006)Google Scholar 7 (footnotes omitted). Whilst Meron also refers to the prosecution of crimes against humanity, at the time these could only be prosecuted where linked to an inter-State conflict: Schwelb, E, ‘Crimes against Humanity’ (1946) 23 BYIL 178, 207Google Scholar; Cassese, A, International Criminal Law (2nd edn, OUP 2008)Google Scholar 104.

44 De Schutter, B and Van den Wyngaert, C, ‘Coping with Non-International Armed Conflicts: The Borderline between National and International Law’ (1983) 13 GaJIntl&CompL 279Google Scholar, 284 (noting that common art 3 was the most debated provision at the conference).

45 Elder, DA, ‘The Historical Background of Common Article 3 of the Geneva Conventions of 1949’ (1979) 11 CaseWResJIntlL 37Google Scholar, 50 (referring to Burma as the ‘self-styled Asian representative’ at the 1949 diplomatic conference).

46 The main objections of Burma to what became common art 3 can be found in Final Record of the Diplomatic Conference of Geneva of 1949: Volume II, Section B (ICRC 1963) at 327–30.

47 ibid 330.

48 ibid 10.

49 ibid 14.

50 Kolb (n 22).

51 Similarly, see Kretzer (n 30) 9.

52 Pictet, JS (ed), Commentary to Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (ICRC 1952)Google Scholar 23. A brief look at some of the proposals for the preambles reveals their similarity to common art 3: See eg Final Record of the Diplomatic Conference of Geneva of 1949: Volume II, Section A (ICRC 1963) 366 (Soviet Union); Final Record of the Diplomatic Conference of Geneva of 1949: Volume I (ICRC 1963) 113 (Stockholm draft).

53 See eg Final Record: Vol II-B (n 46) 10 (UK) and 98–9 (France). Sovereignty concerns would continue to be expressed in subsequent conferences: Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77): Volume VIII (Federal Political Department 1978) 205 (Argentina); ibid, 206 (German Democratic Republic); Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77): Volume VII (Federal Political Department 1978) 81 (India).

54 See eg Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

55 Kamminga, MT and Scheinin, M, The Impact of Human Rights Law on General International Law (OUP 2009)Google Scholar 22.

56 Such scholars are extremely varied in their focus and the reasons for their caution: see eg Pellet, A, ‘“Human Rightism” and International Law’ (2000) 10 ItalianYBIntlL 3Google Scholar (doubting that the human rights movement has fundamentally altered the State-centrism of international law); Marks, S, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (OUP 2000)Google Scholar (critiquing the emancipatory promise of the so-called ‘democratic norm thesis’ and the marginalization of socio-economic rights); Orakhelashvili, A, ‘The Position of the Individual in International Law’ (2000) 31 CalWIntlLJ 241Google Scholar (arguing that the emergence of rights and obligations of individuals in international law has not elevated them to the position of international legal persons).

57 See eg Kirgis, FL, ‘Custom on a Sliding Scale’ (1987) 81 AJIL 146Google Scholar; Meron, T, ‘The Geneva Conventions as Customary Law’ (1987) 81 AJIL 361Google Scholar; Kamminga and Scheinin (n 55) 7–8 and ch 6; Prosecutor v Kupreškić (Trial Judgment) IT-95-16-T (14 January 2000) [527] and [531] (suggesting that custom can form with scant practice where demanded by principles of humanity).

58 Compare eg Petersmann, E-U, ‘The WTO Constitution and Human Rights’ (2000) 3 JIEL 19CrossRefGoogle Scholar and Alston, P, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 EJIL 815Google Scholar.

59 Meron (n 43) xv.

60 See eg Final Act of the International Conference on Human Rights, UN Doc A/Conf.32/41, 22 April–13 May 1968; UNGA Res 2444 (XXIII), ‘Respect for Human Rights in Armed Conflict’ (19 December 1968).

61 Sivakumaran (n 4) 44–6 (noting this contribution of the UN).

62 ICCPR (n 54) art 1(1); Higgins, R, Problems & Process: International Law and How We Use It (OUP 1994) 114–15Google Scholar.

63 Sandoz (n 30) xxxiii; Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian law Applicable in Armed Conflicts, Geneva (1974–77): Volume I (Federal Political Department 1978) 7 (the ‘progressive development and codification of international humanitarian law applicable in armed conflicts is a universal task in which the national liberation movements can contribute positively’); C Ewumbue-Monono, ‘Respect for International Humanitarian Law by Armed Non-State Actors in Africa’ (2006) 88 IRRC 905, 917–8.

64 API (n 12) art 1(4).

65 Official Records: Vol VIII (n 53) 220 [29]–[30]. Similarly, see ibid, 223 [46] (Italy); ibid, 218 [18]–[19] (New Zealand); ibid, 222 [40] (Netherlands); ibid, 230 [10] (Argentina).

66 See eg Sandoz (n 30) 1369 [4516], 1385 [4565], 1448 [4761] (noting the provenance of arts 4(1), 5 and 13 APII, respectively, in the law of international armed conflict).

67 Sivakumaran (n 4) 64.

68 See eg Sandoz (n 30) 1376 [4541] (on art 4(2)(f) APII prohibiting slavery and the slave trade).

69 This is in contrast to the approach adopted by some in modern debates, discussed below under section III.

70 Cryer, R, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’ (2006) 11 JCSL 239, 240Google Scholar; Aldrich, GH, ‘The Laws of War on Land’ (2000) 94 AJIL 42, 61Google Scholar.

71 Tadić (n 17) [97]. Similarly, see Meron (n 43) 4.

72 See also Prosecutor v Delalić et al. (Appeals Judgment) IT-96-21-A (20 February 2001) [172].

73 Tadić (n 17) [127].

74 See eg Sivakumaran (n 4), especially Part II, demonstrating the large number of rules now applicable in non-international conflicts. Amongst those areas that remain unaffected by this trend, one might note in particular combatant immunity and detention: Sassòli, M and Olson, LM, ‘The Relationship between International Humanitarian Law and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 IRRC 599Google Scholar.

75 See eg Final Record: Vol II-B (n 46) 326 (Soviet Union); Final Record: Vol I (n 52) 47 (ICRC); Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77): Volume V (Federal Political Department 1978) 91 (Norway); Official Records: Vol VII (n 53) 321–2 (Holy See).

76 See eg Crawford (n 9); Mastorodimos (n 20).

77 The ICRC's methodology necessarily pointed it towards mapping the law of non-international armed conflict on the law of international armed conflict: Sivakumaran (n 4) 58–9.

78 Henckaerts and Doswald-Beck, Vol I (n 17) 344.

79 ibid 344–6.

80 GCIV (n 5) arts 41–43 and 78.

81 Henckaerts and Doswald-Beck, Vol I (n 17) 350–1.

82 See eg ICCPR (n 54) art 9(4); ECHR (n 54) art 5(4).

83 Al-Jedda v United Kingdom, App No 27021/08, Judgment (Grand Chamber), 7 July 2011.

84 ibid [97]–[110].

85 Hassan v United Kingdom, App No 29750/09, Judgment (Grand Chamber), 16 September 2014.

86 ibid [96]–[111].

87 Whilst one might argue that the different approach taken in Hassan is simply a result of the UK government having for the first time raised the argument that IHL, rather than the ECHR, is the governing regime, the Court made clear that its approach in that case was restricted to international armed conflicts, leaving its Al-Jedda approach unaffected: ibid [104].

88 The same approach can be seen in a report by a group of UN Special Rapporteurs with regard to US detention at Guantánamo Bay: UN Commission on Human Rights, ‘Situation of Detainees at Guantánamo Bay’, E/CN.4/2006/120 (27 February 2006) [19] and [24].

89 In the absence of IHL treaty rules applicable to detention in non-international conflicts, certain commentators similarly adopt this approach: see eg Rodley, N and Pollard, M, The Treatment of Prisoners under International Law (3rd edn, OUP 2009) 489–91Google Scholar; Olson, LM, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law—Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict’ (2009) 40 CaseWResJIntl L 437, 454Google Scholar; Doswald-Beck, L, Human Rights in Times of Conflict and Terrorism (OUP 2012) 277–9Google Scholar.

90 Doswald-Beck, L, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?’ (2006) 88 IRRC 881, 889–91Google Scholar and 903–4. For a similar argument regarding targeting, see Abresch, W, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 EJIL 741Google Scholar.

91 On this see text to n 14.

92 Kretzmer (n 30). Similarly, with regard to the regulation of the use of force in non-international armed conflict, see Garraway, C, ‘“To Kill or Not to Kill?”—Dilemmas on the Use of Force’ (2010) 14 JCSL 499, 509–10Google Scholar.

93 On the use of the lex specialis principle by the ICJ in defining the relationship between IHL and IHRL, see text to nn 112–13.

94 One might alternatively view some of these approaches, notably Kretzmer's and Garraway's, as eliminating the distinction between international and non-international armed conflicts whilst at the same time raising the threshold for a non-international armed conflict to come into existence, leaving IHRL as the governing regime in a number of situations that currently would constitute non-international armed conflicts. It should also be noted that others have taken a human rights approach to the regulation of all armed conflicts, resulting in more protective, unified rules: see eg Martin, FF, ‘Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict’ (2001) 64 SaskLRev 347Google Scholar.

95 This is noted by Kretzmer (n 30) 24–6.

96 Meron, T, ‘The Humanization of Humanitarian Law’ (2000) 94 AJIL 239, 240Google Scholar. See the example regarding targeting at text to nn 104–8.

97 Droege, C, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 IRRC 501, 521Google Scholar.

98 ibid.

99 Schmitt, M, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 VaJIntlL 795Google Scholar.

100 Prud'homme, N, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 IsraelLRev 356, 361Google Scholar.

101 See eg the limitation and derogation clauses found in IHRL treaties: ICCPR (n 54) arts 18(3) and art 4. For a comparison of the permissive roles played by considerations of necessity in IHL and IHRL, see Hill-Cawthorne, L, ‘The Role of Necessity in International Humanitarian and Human Rights Law’ (2014) 47 IsraelLRev 225Google Scholar.

102 Jochnick, C and Normand, R, ‘The Legitimation of Violence: A Critical History of the Laws of War’ (1994) 35 HarvIntl J 49, 56Google Scholar. One might contrast this with the more optimistic view of contemporary IHL put forward by Meron (n 96).

103 See discussion at text to nn 79–82.

104 Dinstein (n 24) 34; Solis, G, ‘Targeted Killing and the Law of Armed Conflict’ (2007) 60 Naval War College Review 127, 130Google Scholar.

105 Kretzmer, D, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 EJIL 171, 190–1Google Scholar (emphasis in original).

106 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) section IX. Similar views have been expressed elsewhere: see eg Pictet, JS, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985)Google Scholar 75; Goodman, R, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24 EJIL 819Google Scholar.

107 See eg Hays Parks, W, ‘Part IX of the ICRC's “Direct Participation in Hostilities”: No Mandate, No Expertise and Legally Incorrect’ (2010) 42 NYUJIntlL&Pol 769Google Scholar; Schmitt, MN, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5, 39Google Scholar; Kleffner, JK, ‘Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?’ (2012) 45 IsraelLRev 35Google Scholar.

108 See eg Suarez de Guerrero v Colombia (1982) Communication No R.11/45, UN Doc Supp No 40 (A/37/40) (Human Rights Committee) [13.1]–[13.3] (interpreting art 6(1) ICCPR); McCann and others v United Kingdom, App No 18984/91, 27 September 1995, [145]–[150] (European Court of Human Rights) (interpreting art 2 ECHR); UNGA, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Christof Heyns), A/68/382, 13 September 2013, [32]–[37].

109 This recognition lies at the heart, for example, of David Kretzmer's approach to the regulation of non-international armed conflict.

110 Kretzmer (n 30) 18–21.

111 See eg Droege (n 97) 503–9; Lubell, N, Extraterritorial Use of Force against Non-State Actors (OUP 2010) 237–40Google Scholar; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 [25]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136 [106]; Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 116 [216]–[217]. Indeed, those sceptical of the application of human rights law in armed conflict appear to accept it at least for (internal) non-international armed conflicts: see eg Dennis, MJ, ‘Non-Application of Civil and Political Rights Treaties Extraterritorially during Times of International Armed Conflict’ (2007) 40 IsraelLRev 453, 455Google Scholar.

112 Legality of Nuclear Weapons, ibid, [25]. The Court similarly invoked the lex specialis maxim, albeit in a slightly different manner, in Israeli Wall, ibid, [106].

113 Akande, D, ‘Nuclear Weapons, Unclear Law? Deciphering the Nuclear Weapons Advisory Opinion of the International Court’ (1998) 68 BYIL 165, 175Google Scholar.

114 Similarly, see Kretzmer (n 30) 23–31.

115 Kretzmer (n 30) 39.

116 See eg Ben-Naftali, O and Shany, Y, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37 IsraelLRev 17, 57–8Google Scholar; Orakhelashvili, A, ‘The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, Or Convergence’ (2008) 19 EJIL 161Google Scholar.

117 Dennis (n 111) 482–6; Human Rights Committee, ‘Fourth Periodic Report: United States of America’, CCPR/C/USA/4, 22 May 2012, [506]–[507].

118 See eg J Pejić, ‘Conflict Classification and the Law Applicable to Detention and the Use of Force’ in Wilmshurst (n 3) 113 (arguing that the IHL rules on the conduct of hostilities apply in non-international armed conflicts and thus constitute the lex specialis). This is also implied by Sivakumaran (n 4) at 98 (‘… it is not immediately clear why international human rights law should regulate non-international armed conflict. Direct regulation of non-international armed conflict through international human rights law is premised on the idea that there is a lack of content and specificity on the part of international humanitarian law … However, this premise is open to challenge’).

119 I elaborate on this point in detail in Hill-Cawthorne, L, ‘Just Another Case of Treaty Interpretation? Reconciling Humanitarian Law and Human Rights Law in the ICJ’ in Andenas, M and Bjorge, E (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015)Google Scholar.

120 For similar scepticism being applied to the related principle in art 31(3)(c) of the Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331, see Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161, Separate Opinion of Judge Higgins. However, the approach of the European Court of Human Rights in Hassan (n 85) at [102]–[107] seems far less sceptical of the reconciliatory power of art 31(3)(c), relying in part on that provision in order to read into art 5 ECHR the IHL detention provisions applicable in international armed conflict.

121 Nada v Switzerland, App No 10593/08, Judgment (Grand Chamber), 12 September 2012 [197].

122 DRC v Uganda (n 111) [217]–[220].

123 I make this point in L Hill-Cawthorne, ‘Regulating Non-International Armed Conflicts: A Review Essay of The Law of Non-International Armed Conflict by Sandesh Sivakumaran’ (2014) 32 AYBIL (forthcoming). For a similar argument, see Milanović, M, ‘Norm Conflicts, International Humanitarian Law, and Human Rights Law’ in Ben-Naftali, O (ed), International Humanitarian Law and International Human Rights Law (OUP 2011)Google Scholar.

124 Whilst the European Court of Human Rights in Hassan (n 85) at [102]–[107] clearly considered the existence of IHL treaty rules on detention in international armed conflict as important, reading them into art 5 ECHR, it also relied in part on the practice of States: see ibid, [101].

125 Ni Aolain, F, ‘The No-Gaps Approach to Parallel Application in the Context of the War on Terror’ (2007) 40 IsraelLRev 563, 581Google Scholar.

126 Watkin, K, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98 AJIL 1, 5Google Scholar (noting that transnational conflicts between States and non-State armed groups straddle not only the peacetime/armed conflict paradigms but also the international armed conflict/non-international armed conflict paradigms).

127 See eg HRC, ‘Concluding Observations: United States of America’, CCPR/C/US/CO/3/Rev.1, 18 December 2006, [18]; Fitzpatrick, J, ‘Sovereignty, Territoriality and the Rule of Law’ (2002) 25 HastingsIntl&CompLRev 303Google Scholar; Pejić, J, ‘Terrorist Acts and Groups: A Role for International Law?’ (2004) 75 BYIL 71, 85–8Google Scholar; O'Connell, ME, ‘When Is a War Not a War? The Myth of the Global War on Terror’ (2005) 12 ILSA JICL 535Google Scholar.

128 See eg JB Bellinger III, Legal Advisor to the US Department of State, ‘Legal Issues in the War on Terrorism’, speech at the London School of Economics & Political Science (31 October 2006); ‘Respondents’ Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay, In Re: Guantanamo Bay Detainee Litigation, Misc No 08-442 (TFH) (DDC 13 March 2009) 1; WK Lietzau, ‘Detention of Terrorists in the Twenty-first Century’ in K Watkin and AJ Norris (eds), Non-International Armed Conflict in the Twenty-first Century (International Law Studies vol 88, Naval War College, Newport 2012) 324–8; Hemingway, TL, ‘Wartime Detention of Enemy Combatants: What If There Were a War and No One Could be Detained Without an Attorney?’ (2006) 34 DenvJIntlL&Pol'y 63Google Scholar.

129 Draper, GIAD, ‘The Relationship between the Human Rights Regime and the Law of Armed Conflicts’ (1971) 1 IsraelYBHumRts 191, 191–6Google Scholar; Suter, K, ‘An Inquiry into the Meaning of the Phrase “Human Rights in Armed Conflicts”’ (1976) 15 Revue de Droit Pénal Militaire et de Droit de la Guerre 393Google Scholar.

130 See references at n 111.

131 On the US courts’ view, see Gherebi v Obama, 609 F Supp 2d 43 (DDC 2009) 57, fn 8; Hamlily v Obama, 616 F Supp 2d 63 (DDC 2009) 73; Olson, LM, ‘Guantánamo Habeas Review: Are the D.C. District Court‘s Decisions Consistent with IHL Internment Standards’ (2009) 42 CaseWResJIntlL 197Google Scholar, at 198 (fn 7). On the government's view, see US Department of Justice White Paper, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force’ (undated; made public on 4 February 2013) 3. Whether this is the correct characterization of conflicts between States and transnational non-State armed groups is beyond the scope of this article: on this, compare Akande (n 30) 70–9 and Lubell, N and Derejko, N, ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’ (2013) 11 JICJ 65, 79–80Google Scholar.

132 Kreß, C, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’ (2010) 15 JCSL 245, 258–61Google Scholar.

133 Ni Aolain (n 125) 581–2; Lubell (n 111) 243.

134 Kretzmer (n 30) 23–31.

135 See eg ‘United States Responses to Selected Recommendations of the Human Rights Committee’ (US State Department, 10 October 2007) <www.state.gov/documents/organization/100845.pdf>; Dennis (n 111). That this is a potential consequence of the ICJ's treatment of IHL as the lex specialis to IHRL (whether in general or only with respect to specific norms) was discussed at text to nn 112–123.

136 See discussion throughout section II above.

137 See eg Pejić (n 118) 113.

138 Kreß (n 132) 260–1 (‘for States that are faced by a non-State armed attack, the resort to the armed conflict model offers the advantage of applying, as the lex specialis, a targeting and detention regime that is appreciably more permissive than that under international human rights law’).

139 Henckaerts and Doswald-Beck, Vol I (n 17) 12–13; Kretzmer (n 30) 36.

140 Lauterpacht, H, Oppenheim's International Law, A Treatise: Volume II, Disputes, War and Neutrality (7th edn, Longhams 1952) 211Google Scholar; Pictet, JS (ed), Commentary to Geneva Convention III Relative to the Treatment of Prisoners of War (ICRC 1960)Google Scholar 40; Crawford (n 9) 68–76.

141 Fitzpatrick, J, ‘Speaking Law to Power: The War against Terrorism and Human Rights’ (2003) 14 EJIL 241, 249Google Scholar (‘[i]n essence, the United States has made a claim of ‘instant custom’, enabling it to exercise extraordinary powers related to international armed conflict, but without any defined protections for its non-state enemies’).

142 This claim has been made by the Obama Administration in the Guantanamo habeas corpus litigation: ‘Respondents’ Memorandum’ (n 128) 5–6 (‘longstanding U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations”’ (citations omitted)); Lietzau (n 128) 324 (‘[f]undamental to understanding U.S. detention policy over the past decade is the comprehension that authority for detention flows from the nature of warfare and the law of war that regulates it’).

143 GCIII (n 5) art 21.

144 GCIV (n 5) arts 42–3 and 78.

145 Thus, art 21 GCIII permits only internment of those qualifying as combatants, which falls to be determined by art 4 GCIII. Similarly, the right to intern enemy civilians under GCIV is conditional on GCIV applying to the particular individual, which falls to be determined by art 4 GCIV.

146 See the recent UK case of Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) (at the time of writing this case is being appealed to the Court of Appeal). Supporting this, see also UN Commission on Human Rights, ‘Report of the Working Group on Arbitrary Detention’, E/CN.4/2006/7, 12 December 2005, [72]; Rona, G, ‘An Appraisal of US Practice Relating to “Enemy Combatants”’ (2007) 10 YIHL 232, 241Google Scholar; Deeks, AS, ‘Administrative Detention in Armed Conflict’ (2009) 40 CaseWResJIntlL 403, 404–5Google Scholar; Olson, LM, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law—Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict’ (2009) 40 CaseWResJIntlL 437, 452Google Scholar; Rowe, P, ‘Is There a Right to Detain Civilians by Foreign Armed Forces during a Non-International Armed Conflict?’ (2011) 61 ICLQ 697Google Scholar; E Debuf, Captured in War: Lawful Internment in Armed Conflict (Hart/Pedone 2013). Some hold contrary views, however: eg K Macak, ‘A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict’ (2015) 45 Israel YBHumRts (forthcoming).

147 See at n 142.

148 The non-extension of the protections of IHL to Taliban and al-Qaeda detainees has, of course, been the subject of much debate: on the initial refusal, see The White House, ‘Memorandum: Humane Treatment of al Qaeda and Taliban Detainees’ (7 February 2002), reprinted in Greenberg, KJ and Dratel, JL (eds), The Torture Papers: The Road to Abu Ghraib (CUP 2005)Google Scholar 134. For a critique of that position, see Vierucci, L, ‘Prisoners of War or Protected Persons Qua Unlawful Combatants? The Judicial Safeguards to Which Guantanamo Bay Detainees are Entitled’ (2003) 1 JICJ 284Google Scholar.

149 This is subject to the derogation provision found in GCIV (n 5) art 5. The provisions of GCIV from which derogation is permissible under art 5 are, however, very limited: Jinks, D, ‘The Declining Significance of POW Status’ (2004) 45 HarvIntlLJ 367, 387–93Google Scholar.

150 Interpretive Guidance (n 106) 32–3.

151 Sivakumaran (n 4) 71. Similarly see Rowe (n 146) 702.

152 For example, by prohibiting the targeting of civilians (APII (n 13) art 13(2)) and the inhumane treatment of detainees (APII (n 13) art 5(3)).

153 Dinstein (n 24) 3–4.

154 Greenwood, C, ‘Scope of Application of Humanitarian Law’ in Fleck, D (ed), The Handbook of International Humanitarian Law (2nd edn, OUP 2008)Google Scholar 56.

155 Serdar Mohammed (n 146) [245]. A new customary rule creating a legal basis for particular action could, of course, crystallize that applied only to States and not also non-State armed groups, but given the importance of equality of obligation in IHL, it seems reasonable for there to be a presumption that any such rule would bind all parties, rebuttable by reference to contrary practice and opinio iuris.

156 The White House, ‘Memorandum: Humane Treatment of al Qaeda and Taliban Detainees’ (n 148) [2(d)]; Crawford (n 9) 56–61.

157 See eg Vierucci (n 148); Dörmann, K, ‘The Legal Situation of “Unlawful/Unprivileged Combatants”’ (2003) 85 IRRC 45Google Scholar; Jinks (n 149) 381–6; Sassòli, M, ‘The Status of Persons Held in Guantánamo under International Humanitarian Law’ (2004) 2 JICJ 96, 100–2Google Scholar.

158 See eg HCJ 769/02, Public Committee Against Torture in Israel et al. v The Government of Israel et al., 57(6) PD 285 (Israel Supreme Court) [26]–[28]; Tange, PC, ‘Netherlands State Practice for the Parliamentary Year 2004–2005’ (2006) 37 NYIL 233, 335–7Google Scholar; UK Ministry of Defence, Joint Doctrine Publication 1-10: Captured Persons (CPERS) (2nd edn, Ministry of Defence 2011)Google Scholar 1–12 [141].

159 Crawford (n 9) 60.

160 Bellinger, JB III and Padmanabhan, VM, ‘Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law’ (2011) 105 AJIL 201Google Scholar, 217 (fn 79).

161 That is not, however, to suggest that human rights treaties were not envisaged as relevant in armed conflict: Milanović, M, ‘Extraterritorial Derogations from Human Rights Treaties in Armed Conflict’ in Bhuta, N (ed), Collected Courses of the Academy of European Law (OUP, forthcoming)Google Scholar.

162 See eg Droege (n 97) 536–7; Prud'homme (n 100) 386–93. On the importance more generally of both IHL and IHRL for the law of non-international armed conflict, see Sivakumaran, S, ‘Re-Envisaging the International Law of Internal Armed Conflict’ (2011) 22 EJIL 219Google Scholar.

163 See above at nn 118–23.

164 Hill-Cawthorne (n 101).