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Human rights obligations in military occupation

Published online by Cambridge University Press:  23 August 2012

Noam Lubell
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Abstract

This article examines the applicability of international human rights law in situations of military occupation. Proceeding from the position that human rights obligations can exist in these circumstances, the article provides an analysis of the precise modalities of application. It examines the tests for the determination of human rights applicability, and how these are linked to the concept of occupation. Finally, it recognizes the practical and legal challenges to the implementation of human rights obligations, and argues for a contextual approach that provides for human rights protection while recognizing the realities of military occupation.

Keywords

military occupationhuman rights obligationsapplicabilityoccupying powerterritorial controlcontextual approacheconomicsocial and cultural rights
Type
Articles
Information
International Review of the Red Cross , Volume 94 , Issue 885: Occupation , March 2012 , pp. 317 - 337
Copyright
Copyright © International Committee of the Red Cross 2012 

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References

1 See, for example, the questions and debates in Draper, G. I. A. D., ‘The relationship between the human rights regime and the law of armed conflicts’, in Israel Yearbook on Human Rights, Vol. 1, 1971, pp. 191–207Google Scholar; Suter, Keith, ‘An inquiry into the meaning of the phrase “human rights in armed conflicts”’, in Revue de droit pénal militaire et de droit de la guerre, Vol. 15, 1976, pp. 393–439Google Scholar; Dennis, Michael J., ‘ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: application of human rights treaties extraterritorially in times of armed conflict and military occupation’, in American Journal of International Law, Vol. 99, No. 1, 2005, pp. 119–141CrossRefGoogle Scholar.

2 These issues have been examined on numerous occasions, including in the following: Doswald-Beck, Louise and Vité, Sylvain, ‘International humanitarian law and human rights law’, in International Review of the Red Cross, Vol. 33, No. 293, 1993, pp. 94–119CrossRefGoogle Scholar; Emilio Vinuesa, Raúl, ‘Interface, correspondence and convergence of human rights and international humanitarian law’, in Yearbook of International Humanitarian Law, Vol. 1, 1998, pp. 69–110CrossRefGoogle Scholar; Droege, Cordula, ‘The interplay between international humanitarian law and international human rights law in situations of armed conflict’, in Israel Law Review, Vol. 40, No. 2, 2007, pp. 310–355CrossRefGoogle Scholar; UN Sub-Commission on the Promotion and Protection of Human Rights, Administration of Justice, Rule of Law and Democracy: Working Paper on the Relationship Between Human Rights Law and International Humanitarian Law by Françoise Hampson and Ibrahim Salama, 21 June 2005, E/CN.4/Sub.2/2005/14; Lubell, Noam, ‘Challenges in applying human rights law to armed conflict’, in International Review of the Red Cross, Vol. 87, No. 860, 2005, pp. 737–754CrossRefGoogle Scholar; Prud'homme, Nancie, ‘Lex specialis: oversimplifying a more complex and multifaceted relationship?’, in Israel Law Review, Vol. 40, No. 2, 2007, pp. 356–395CrossRefGoogle Scholar; Ben-Naftali, Orna and Shany, Yuval, ‘Living in denial: the application of human rights in the Occupied Territories’, in Israel Law Review, Vol. 37, No. 1, 2003–2004, pp. 17–118CrossRefGoogle Scholar.

3 International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, ICJ Reports 1996, para. 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, para. 106 (hereafter Wall case); ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, ICJ Reports 2005, para. 216; Inter-American Court of Human Rights, Juan Carlos Abella v. Argentina, Case 11.137, Report No. 55/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 271, 1997; Human Rights Committee, ‘General Comment 29: states of emergency (Article 4)’, UN Doc. CCPR/C/21/Rev.1/Add.11, 2001, para. 3; Committee on Economic, Social and Cultural Rights, ‘Concluding observation: Israel’, UN Doc. E/C.12/1/Add.69, 31 August 2001; see also discussion in the articles listed in note 2 above.

4 See below, in the section on the content of obligations and legal restrictions imposed by IHL.

5 See the discussion below of economic, social, and cultural rights.

6 See analysis in Lubell, Noam, Extraterritorial Use of Force Against Non-state Actors, Oxford University Press, Oxford, 2010, ch. 8CrossRefGoogle Scholar.

7 Ibid.; see also further analysis of this issue in Milanovic, Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy, Oxford University Press, Oxford, 2011CrossRefGoogle Scholar.

8 ICJ, Wall case, above note 3, paras. 107–112; ICJ, DRC v. Uganda, above note 3, paras. 216–220; Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, 18 August 1998, CCPR/C/79/Add.93; Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 31 August 2001, E/C.12/1/Add.69; Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, prepared by Mr. Walter Kälin, Special Rapporteur of the Commission on Human Rights, in Accordance with Commission Resolution 1991/67, E/CN.4/1992/26, 15 January 1992, paras. 55–59; European Court of Human Rights (ECtHR), Loizidou v. Turkey (Preliminary Objections), Application No. 15318/89, Judgment of 23 March 1995, Series A No. 310, paras. 62–64; ECtHR, Cyprus v. Turkey, Application No. 25781/94, Judgment of 10 May 2001, para. 77.

9 The Queen ex parte Al-Skeini and Others v. Secretary of State for Defence, England and Wales Court of Appeal [2005] EWCA Civ 1609, 21 December 2005; Opinions of The Lords of Appeal for Judgment in the Case Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals), 13 June 2007, [2007] UKHL 26; ECtHR, Al-Skeini and Others v. the United Kingdom, Application No. 55721/07, Judgment of 7 July 2011.

10 ECtHR, above note 9, Al-Skeini, paras. 133–137.

11 Ibid., para. 137.

12 Ibid., para. 138.

13 Ibid., para. 137.

14 Ibid., para. 138; ECtHR, Cyprus v. Turkey, above note 8, para. 77.

15 Ibid. For further discussion of the notion of control, see M. Milanovic, above note 7, pp. 135–151.

16 Al-Skeini, Court of Appeal, above note 9, Brooke LJ, para. 124. See also para. 127.

17 ECtHR, Al-Skeini, above note 9, para. 149 (emphasis added).

18 N. Lubell, above note 6, ch. 8.

19 Al-Skeini, Court of Appeal, above note 9, Brooke LJ, para. 124.

20 Al-Skeini, Court of Appeal, above note 9, paras. 119–124, 194.

21 ECtHR, Al-Skeini, above note 9, para. 114.

22 Al-Skeini, Court of Appeal, above note 9, Sedley LJ, para. 197.

23 ‘… relevant to the situation …’, in ECtHR, Al-Skeini, above note 9, para. 137.

24 N. Lubell, above note 6, ch. 8; O. Ben-Naftali and Y. Shany above note 2, p. 64. In situations of armed conflict there is also, of course, the question of how the concurrent applicability of international human rights law and IHL might affect the nature of the obligations. This is a separate question, which has been examined often elsewhere, and with no conclusive or agreed answer. The focus of this article is not on how to manage concurrent applicability, but on the earlier stage of determining the scope of applicable human rights obligations.

25 ICJ, Wall case, above note 3, para. 112.

26 ECtHR, Ilaşcu and Others v. Moldova and Russia, Application No. 48787/99, Judgment of 8 July 2004.

27 Whether or not this is the case will be discussed further below.

28 ‘The Committee accepts that it is normal for prison authorities to exercise measures of control and censorship over prisoners’ correspondence. Nevertheless, article 17 of the Covenant provides that “no one shall be subjected to arbitrary or unlawful interference with his correspondence”. This requires that any such measures of control or censorship shall be subject to satisfactory legal safeguards against arbitrary application (see para. 21 of the Committee's views of 29 October 1981 on communication No. R.14/63 [63/1979]). Furthermore, the degree of restriction must be consistent with the standard of humane treatment of detained persons required by article 10 (1) of the Covenant. In particular, prisoners should be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, by correspondence as well as by receiving visits’. Human Rights Committee, Miguel Angel Estrella v. Uruguay, Communication No. 74/1980, UN Doc. CCPR/C/OP/2 at 93 (1990), para. 9.2.

29 International Covenant on Civil and Political Rights (ICCPR), UN General Assembly res. 2200A (XXI), UN Doc. A/6316 (1966), entered into force 23 March 1976, Art. 18, para. 3 (on the manifestation of freedom of religion).

30 ICCPR, Art. 4; Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 September 1953, as amended by Protocols Nos. 3, 5, 8, and 11, which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively, Art. 15; American Convention on Human Rights (ACHR), O.A.S. Treaty Series No. 36, 1144 UNTS 123, entered into force 18 July 1978, Art. 27.

31 ECtHR, Rigopoulos v. Spain, Application No. 37388/97, Decision of 12 January 1999; see also ECtHR, Medvedyev and Others v. France, Application No. 3394/03, Grand Chamber, Judgment of 29 March 2010, paras. 127–134.

32 ‘Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and fulfil. Failure to perform any one of these three obligations constitutes a violation of such rights’. van Boven, Theo, Flinterman, Cees, and Westendorp, Ingrid (eds), The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, SIM, Utrecht, 1996Google Scholar, para. 6; Committee on Economic, Social and Cultural Rights, ‘General comment no. 12: right to adequate food (Art. 11)’, Twentieth session, 12 May 1999, UN Doc. E/C.12/1999/5, para. 15; Committee on Economic, Social and Cultural Rights, ‘General comment no. 13: the right to education (Article 13 of the Covenant)’, Twenty-first session, 8 December 1999, UN Doc. E/C.12/1999/10, paras. 46–47.

33 ‘Negative duties – duties not to deprive people of what they have rights to – are, and must be, universal. A right could not be guaranteed unless the negative duties corresponding to it were universal, because anyone who lacked even the negative duty not to deprive someone of what she has rights to would, accordingly, be free to deprive the supposed right-bearer. Universal negative duties, however, are no problem (if “opportunity costs” are ignored). I can easily leave alone at least five billion people, and as many more as you like’. Shue, Henry, ‘Mediating duties’, in Ethics, Vol. 98, No. 4, 1988, p. 690CrossRefGoogle Scholar.

34 ECtHR, Osman v. The United Kingdom, Application No. 23452/94, 87/1997/871/1083, Judgment of 28 October 1998, para. 115.

35 ECtHR, Al-Skeini, above note 9, para. 112.

36 Regulations Annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, 1907, Art. 43.

37 ICJ, DRC v. Uganda, above note 3, paras. 178–179.

38 On the Article 43 obligation to restore and ensure public order and life, see Dinstein, Yoram, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, pp. 91–94CrossRefGoogle Scholar.

39 See above discussion in previous section on applicability. ‘When faced with a partial or total failure to act, the Court's task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made’. ECtHR, Ilaşcu and Others, above note 26, para. 334. See also the reference to ‘due diligence’ in M. Milanovic, above note 7, p. 141.

40 ECtHR, Al-Skeini, above note 9, para. 168.

41 Ibid., para. 114.

42 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, entered into force 21 October 1950 (hereafter GC IV), Art. 64.

43 Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, Princeton, NJ, 2004, p. 11Google Scholar.

44 Ibid., pp. 9–11; Y. Dinstein, above note 38, p. 89.

45 See discussion in Y. Dinstein, above note 38, pp. 120–123.

46 See discussion in ibid., pp. 46, 112–123. On development of interpretations in this regard, see E. Benvenisti, above note 43, pp. xi–xiv. See also the analysis of legislation by occupying powers in Sassòli, Marco, ‘Legislation and maintenance of public order and civil life by occupying powers’, in European Journal of International Law, Vol. 16, No. 4, 2005, pp. 661–694CrossRefGoogle Scholar. While there is room for changes based on human rights obligations, Sassòli notes that the interpretation and implementation must endeavour to respect local society and customs (ibid., pp. 676–677).

47 For discussion of the particular challenges in cases of prolonged occupation, see Roberts, Adam, ‘Prolonged military occupation: the Israeli-occupied territories 1967–1988’, in American Journal of International Law, Vol. 84, No. 1, 1990, pp. 44–103CrossRefGoogle Scholar.

48 ICJ, Wall case, above note 3, paras. 107–112; Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, above note 8; see also Vité, Sylvain, ‘The interrelation of the law of occupation and economic, social and cultural rights: the examples of food, health and property’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 629–651CrossRefGoogle Scholar.

49 For example, see the work of Physicians for Human Rights – Israel, available at: http://www.phr.org.il/default.asp?PageID=21 (last visited 24 April 2012).

50 GC IV, Art. 55.

51 Ibid., Arts. 55–56.

52 Ibid., Art. 50.

53 As noted earlier, even with regard to existing IHL obligations, the fact that these are also part of human rights law can trigger the possibility for monitoring by human rights treaty bodies.

54 GC IV, Art. 51–52.

55 ICJ, Wall case, above note 3, paras. 133–134. See also the description given by the non-governmental organization B'Tselem: ‘Within the West Bank, the restrictions make it very hard for Palestinians to get to their jobs and to transport goods from area to area. This has led to an increase in transportation costs and consequently to lower profits. Trade from one section to another in the West Bank has become expensive, uncertain, and inefficient. The economy in the West Bank has been split into smaller, local markets. Restrictions on access of West Bank farmers to their lands in the “seam zone” and in the Jordan Valley have severely harmed the farming sector in these areas’. B'Tselem, ‘Effect of restrictions on the economy’, 1 January 2011, available at: http://www.btselem.org/freedom_of_movement/economy (last visited 24 April 2012).

56 ICJ, Wall case, above note 3, paras. 130, 133, and 134.

57 As required by the International Covenant on Economic, Social and Cultural Rights (ICECSR), UN General Assembly res. 2200A (XXI) of 16 December 1966, entered into force 3 January 1976, Art. 6, para. 2.

58 GC IV, Arts. 55 and 56.

59 Ibid., Art. 56. See also Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949, Commentary, Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, pp. 313–314Google Scholar : ‘It is possible that in certain cases the national authorities will be perfectly well able to look after the health of the population; in such cases the Occupying Power will not have to intervene; it will merely avoid hampering the work of the organizations responsible for the task. In most cases, however, the invading forces will be occupying a country suffering severely from the effects of war; hospitals and medical services will be disorganized, without the necessary supplies and quite unable to meet the needs of the population. The Occupying Power must then, with the co-operation of the authorities and to the fullest extent of the means available to it, ensure that hospital and medical services can work properly and continue to do so. The Article refers in particular to the prophylactic measures necessary to combat the spread of contagious diseases and epidemics. Such measures include, for example, supervision of public health, education of the general public, the distribution of medicines, the organization of medical examinations and disinfection, the establishment of stocks of medical supplies, the despatch of medical teams to areas where epidemics are raging, the isolation and accommodation in hospital of people suffering from communicable diseases, and the opening of new hospitals and medical centres.’

60 Committee on Economic, Social and Cultural Rights, ‘General Comment no. 14: the right to the highest attainable standard of health (Art. 12)’, Twenty-second session, 11 August 2000, UN Doc. E/C.12/2000/4.

61 Ibid., para. 36.

62 ICESCR, Art. 2.

63 GC IV, Arts. 55 and 56.

64 ‘[T]he fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal’. Committee on Economic, Social and Cultural Rights, ‘General Comment no. 3: the nature of States Parties obligations, Art. 2, para. 1 of the Covenant’, Fifth session, 14 December 1990, para. 9.

65 GC IV, Art. 56; Committee on Economic, Social and Cultural Rights, General Comment no. 14, above note 60.

66 See earlier discussion; note, however, that a common assumption is that the ‘local population’ refers to the protected persons and original inhabitants of the occupied territory. Widening this to include others such as nationals of the Occupying Power (e.g. the Israeli settlers) creates significant challenges and potential for distorting the crucial balance between the needs of the occupier and those of the protected persons. For discussion of related issues, see Gross, Aeyal M., ‘Human proportions: are human rights the emperor's new clothes of the international law of occupation?’, in European Journal of International Law, Vol. 18, No. 1, 2007, pp. 1–35CrossRefGoogle Scholar.

67 ICESCR, Art. 2, para. 2; Committee on Economic, Social and Cultural Rights, ‘General Comment no. 20: non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)’, Forty-second session, 2 July 2009, E/C.12/GC/20; Committee on Economic, Social and Cultural Rights, ‘General Comment no. 14’, above note 60, paras. 12(b), 18–19.

68 GC IV, Art. 38.

69 See Israel High Court of Justice, 168/91 Morcus v. Minister of Defence, and the requirement of non-discrimination with regard to distribution of gas masks to both settlers and the Palestinian population.

70 Ramcharan, Bertrand ‘The concepts and dimensions of the right to life’, in Ramcharan, Bertrand (ed.), The Right to Life in International Law, Martinus Nijhoff, Dordrecht, 1985, pp. 1–32Google Scholar; Paul Gormley, W., ‘The right to life and the rule of non-derogatability: peremptory norms of jus cogens’, in ibid., pp. 120–159Google Scholar; International Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Anto Furundzija, IT-95-17/1, Trial Chamber, Judgment of 10 December 1998, paras. 153–157; ECtHR, Al-Adsani v. The United Kingdom, Application No. 35763/97, Judgment of 21 November 2001, paras. 60–61; Lillich, Richard B., ‘The growing importance of customary international human rights law’, in Georgia Journal of International and Comparative Law, Vol. 25, No. 1, pp. 5–6Google Scholar; Restatement (Third) of the Foreign Relations Law of the United States, section 702, 1987 (referring to ‘prolonged arbitrary detention’); Human Rights Committee, ‘General Comment no. 24: issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’, Fifty-second session, 4 November 1994, UN Doc. CCPR/C/21/Rev.1/Add.6, para. 8.

71 ICJ, DRC v. Uganda, above note 3, paras. 217, 219.

72 ECtHR, Al-Skeini, above note 9.

73 ICJ, Wall case, above note 3, paras. 102–113.

74 Committee on Economic, Social and Cultural Rights, ‘Concluding observation: Israel’; above note 3; Concluding observations of the Human Rights Committee: Israel, CCPR/C/ISR/CO/3, 3 September 2010.

75 Hague Regulations, Art. 43.

76 Human Rights Committee, ‘General Comment no. 26: continuity of obligations’, 8 December 1997, CCPR/C/21/Rev.1/Add.8/Rev.1, para. 4.

77 Committee on Economic, Social and Cultural Rights, ‘General Comment no. 3’, above note 64, para. 9.

78 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679, entered into force 27 January 1980, Art. 34.

79 See the above discussion of the UK in Iraq under the ECHR, and the cases covering the Israeli occupation of the Palestinian Territories.