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Challenges in applying human rights law to armed conflict

Published online by Cambridge University Press:  01 December 2005

Noam Lubell
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Abstract

The debates over the relationship between International Humanitarian Law and International Human Rights Law, have often focused on the question of whether human rights law continues to apply during armed conflict, and if so, on how these two bodies of law can complement each other. This article takes the continuing applicability of human rights law as an accepted and welcome starting point, and proceeds to lay out some of the challenges and obstacles encountered during the joint application of IHL and Human Rights Law, that still need to be addressed. These include extra-territorial applicability of human rights law; the mandate and expertise of human rights bodies; terminological and conceptual differences between the bodies of law; particular difficulties raised in non-international armed conflicts; and the question of economic, social and cultural rights during armed conflict.

Type
Selected articles on international humanitarian law
Information
International Review of the Red Cross , Volume 87 , Issue 860: Communication , December 2005 , pp. 737 - 754
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 Amongst others, see Draper, G.I.A.D., “The relationship between the human rights regime and the laws of armed conflict,” Israel Yearbook on Human Rights, Vol. 1, 1971, p. 191Google Scholar; L. Doswald-Beck and S. Vite, “International humanitarian law and human rights law,” International Review of the Red Cross, No. 293, March-April 1993, p. 94; Vinuesa, R.E., “Interface, correspondence and convergence of human rights and international humanitarian law,” Yearbook of International Humanitarian Law, Vol. 1, T.M.C. Asser Press, The Hague, 1998, pp. 69–110CrossRefGoogle Scholar; Provost, R., International Human Rights and Humanitarian Law, Cambridge University Press, Cambridge, 2002CrossRefGoogle Scholar; Heintze, H., “On the relationship between human rights law protection and international humanitarian law,” International Review of the Red Cross, Vol. 86, No. 856, December 2004, p. 798Google Scholar.

2 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 8 July 1996, ICJ Reports 1996, para. 25.

3 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004; Human Rights Committee, General Comment 29, States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.l/Add.ll (2001) para. 3; Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel; 31/08/2001. E/C.12/1/Add.69. For further support for the applicability of human rights law during conflict, see for instance the detailed arguments contained in Doswald-Beck and Vité, and in Heintze, op. cit. (note 2).

4 In the words of the Court “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.” ICJ, Advisory Opinion, ibid., para. 106.

5 See for example some of the arguments raised in Dennis, M., “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,” American Journal of International Law, Vol. 99, 2005, p. 119CrossRefGoogle Scholar; at a June 2005 conference in Oslo to mark the ICRC study on customary IHL, op. cit. (note 1), one of the participants expressed the view that human rights law is designed only for peacetime and IHL is the only law for times of war.

6 For example, see Doswald-Beck and Vité; Vinuesa; Provost; and Heintze; op. cit. (note 2).

7 See the “Fundamental guarantees” chapter in ICRC study, op. cit. (note 1), Vol. 1 pp. 299–383.

8 For an example of a comprehensive publication devoted to this subject, see Coomans, F. and Kamminga, M. (eds.), Extraterritorial Application of Human Rights Treaties, Intersentia, Antwerp, 2004Google Scholar.

9 Non-international armed conflicts that have crossed the Additional Protocol II threshold, and in which the State engages in military action in territory over which the armed opposition group, and not the State, exercises de facto control, might theoretically be subject to similar questions, though there are marked differences between such conflicts and international armed conflicts.

10 For detailed analysis, see the examination of the case-law contained in High Court of Justice, Queens Bench Division, Divisional Court, R (Al-Skeini and others), v. Secretary of Statefor Defence, 14 December 2004; see also Françoise Hampson and Ibrahim Salama, “Working paper on the relationship between human rights law and international humanitarian law,” UN Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2005/14 21 June 2005, paras. 78–92.

11 ECHR, Loizidou v. Turkey (Preliminary Objections) 40/1993/ 435/514, paras. 62–64; Al-Skeini, ibid.

12 Legal Consequences Adv. Op., op. cit. (note 4), paras. 107–112; Concluding Observations of the Human Rights Committee: Israel, 18 August 1998, CCPR/C/79/Add,93; Loizidou, op. cit. (note 12).

13 The occurrence of hostilities after a situation of occupation has been established (as opposed to the hostilities leading up to an occupation), gives rise to a number of problems. Some of these are addressed in Lubell, N., “The ICJ Advisory Opinion and the separation barrier: A troublesome route,” Israel Yearbook on Human Rights, Vol. 35, 2005, pp. 294–299Google Scholar.

14 See the distinction made by the Court between the first five claimants and the sixth claimant. Al-Skeini, op. cit. (note 11), paras. 284–285.

15 General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.l/Add.l3 (2004), para.10.

16 HRC, 29 July 1981, UN Doc.A/36/40, 176, Communication No. 52/1979; ECHR, 46221/99, Judgment 12 March 2003; Grand Chamber Judgment, 12 May 2005.

17 See M. Scheinin, “Extraterritorial effect of the International Covenant on Civil and Political Rights,” and R. Lawson, “Life after Bankovic: On the extraterritorial application of the European Convention on Human Rights,” but also D. McGoldrick, “Extraterritorial application of the International Covenant on Civil and Political Rights,” all in: Extraterritorial Application of Human Rights Treaties, op. cit. (note 9). See also Sub-Commission working paper, op. cit. (note 11), paras. 86–91.

18 Nuclear Weapons, Adv. Op., op. cit. (note 3).

19 ECHR, Bankovic and others v. Belgium and 16 Other Contracting States, Case No. 52207/99, 12 December 2001.

20 There is a risk that basing the notion of control on the existence of ground troops while excluding the possibility of violations through use of air power would mean that States can choose the latter in order to avoid censure for human rights violations. For this and more, see note 18 above.

21 See presentation by D. Kretzmer, “The law of armed conflict: Problems and prospects,” Chatham House, 18–19 April 2005. Available on <http://www.riia.org/pdf/research/il/ILParmedconflict.pdf>, (last visited on 24 January 2006).

22 Berger, Grimes & Jensen (eds.), The US Operational Law Handbook 2004, Chapter 3, Section II.

23 ECHR, Isayeva, Yusupova and Bazayeva v. Russia, Case No.57947/00, 57948/00 and 57949/00, 24 February 2005.

24 See discussion of this approach in A. Reidy, “The approach of the European Commission and Court of Human Rights to international humanitarian law,” International Review of the Red Cross, No. 324, September 1998, pp. 514–516.

25 Inter-Am.CHR, Juan Carlos Abella v. Argentina, Case No. 11.137, Report No. 55/97, 18 November 1997, para. 271.

26 Inter-Am.CHR, Las Palmeras v. Colombia, Case No. 67, Judgment on Preliminary Objections, 4 February 2000.

27 Inter-Am.CHR, Bamaca Velasqez v. Guatemala, Judgment, Case No. 70, 25 November 2000.

28 ECHR, Cyprus v. Turkey, Cases No. 6780/74 and 6950/75, Report of the Commission, 10 July 1976.

29 ECHR, Ergi v. Turkey, Case No. 23818/94, Judgment, 28 July 1998.

30 Examples of these and others are cited in D. O'Donnell, “Trends in the application of international humanitarian law by United Nations human rights mechanisms,” International Review of the Red Cross, No. 324, September 1998, p. 481.

31 See some of the criticisms raised in the ICRC report on “International humanitarian law and the challenges of contemporary armed conflicts,” 28th International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2003, pp. 59–60.

32 ECHR, Ozkan and others, Case No. 21689/93, Judgment, 6 April 2004.

33 Op. cit. (note 24).

34 See Sub-Commission Working Paper, op. cit. (note 11), para. 72 and accompanying footnote 58.

35 Op. cit. (note 24), para. 171.

36 Though it does not solve all the related problems, as can be seen below in the section on human rights law and IHL during non-international armed conflict.

37 J. Delbruck, “Proportionality,” Encyclopaedia of Public International Law, Vol. 7, Elsevier Science Publishers, 1984, p. 398.

38 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Doc. A/CONF.144/28/Rev.l,1990,p.ll2; UN Code of Conduct for Law Enforcement Officials, G.A.res.34/169,annex, 34 UN GAOR Supp. (No. 46), p. 186; UN Doc. A/34/46, 1979; McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, paras. 147–149.

39 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977, Art. 51.5(b).

40 Op. cit. (note 3).

41 Moir, L., The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, pp. 193–231CrossRefGoogle Scholar; Greenwood, C., “Rights at the frontier: Protecting the individual in time of war,” Law at the Centre: The Institute of Advanced Legal Studies at Fifty, Kluwer, Dordrecht, 1999, p. 288Google Scholar.

42 Though there have also been developments in treaty law, such as through the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, amendment Article 1,21 December 2001.

43 ICTY, Prosecutor v. Tadic, Appeals Chamber, Case No. IT-94–1-AR72, 2 October 1995, paras.97–98, 117, 119–125. For an assessment of these findings, see Greenwood, C., “International humanitarian law and the Tadic case,” European Journal of International Law, Vol. 7, 1996, p. 265CrossRefGoogle Scholar; ICRC study, op. cit. (note. 1). While not every point of the ICRC study may be agreed with, as was seen at some of the conferences devoted to it (indeed, the foreword acknowledges that “the study makes no claim to be the final word,” p. xvii), it is virtually incontestable that one of its major achievements is to have elucidated a great number of IHL rules applicable to non-international armed conflicts.

44 Though more limited than the above sources. Rome Statute of the International Criminal Court (ICC), UN Doc. A/CONF.183/9, 1998, Article 8.2(e).

45 ICRC study, op. cit. (note 1), Vol. 1, pp. 46–50.

46 See note 39 above. See also discussion of the right to life in Boyle, C.K., “The concept of arbitrary deprivation of life” in Ramcharan, B.G. (ed), The Right to Life in International Law, Nijhoff, Dordrecht, 1985, pp. 221–244Google Scholar; and in D. Kretzmer “Targeted killing of suspected terrorists: Extra-judicial executions or legitimate means of defence?”, European Journal of International Law, Vol. 16, p. 171, pp. 176–183.

47 Moir, op. cit. (note 42), pp. 67–88. See also Spieker, H., “Twenty-five years after the adoption of Additional Protocol II: Breakthrough or failure of humanitarian legal protection?”, Yearbook of International Humanitarian Law, Vol. 4, T.M.C., Asser Press, The Hague, 2001, pp. 134–143Google Scholar.

48 Abella v. Argentina, op. cit. (note 26).

49 “While State armed forces are not considered civilians, practice is not clear as to whether members of armed opposition groups are civilians subject to Rule 6 on loss of protection from attack in the event of direct participation or whether members of such groups are liable to attack as such, independently of the operation of Rule 6,” ICRC study, op. cit. (note 1), Vol. 1, p. 19 and, in general, pp. 17–24; see also IHL and the Challenges of Contemporary Armed Conflicts, op. cit. (note 32), pp. 27–39.

50 ICRC study, ibid.

51 The discussion of problems related to direct participation of civilians (ibid) also covers international armed conflict.

52 See risk raised by Kretzmer, op. cit. (note 47), p. 200; on the question of characterization of the situation, including self-characterization, see Provost, op. cit. (note 2), pp. 277–342. It is, however, important to note that historically, States have tended not to accept the classification of armed conflict and deny that the threshold had been reached. See Meron, T., Human Rights in Internal Strife: Their International Protection, Grotius, Cambridge, 1987, p. 47Google Scholar, and Moir, op. cit. (note 42), pp. 67–88.

53 Such as the Spanish Civil War.

54 Although one view would appear to lead in that direction — see Martin, F. F.“Using international human rights law for establishing a unified use of force rule in the law of armed conflict,” Saskatchewan Law Review, Vol. 64, 2001, p. 347Google Scholar; but see responses in J. Paust “Colloquy on the law of armed conflict: The unified use of force and exclusionary rules — The right to life in human rights law and the law of war,” and in L.C. Green “Colloquy on the law of armed conflict: The unified use of force and exclusionary rules — The “unified use offeree rule” and the law of armed conflict: A reply to Professor Martin,” both in Saskatchewan Law Review, Vol. 65, 2002, pp. 411Google Scholar and 427.

55 See for instance the “Mixed Model” proposed by Kretzmer with regard to terrorism, op. cit. (note 47), pp. 201–204.

56 While there has been much progress in development of IHL in relation to non-international armed conflict, comments concerning the status of individuals made over 30 years ago remain pertinent: “international law can responsively order internal conflict only if it, first, provides uniform rules for the conduct of military operations therein and, second, provides rules for the classification and treatment of non-combatants.” Bond, J., The Rules of Riot: Internal Conflict and the Law of War, Princeton University Press, Princeton, 1974, p. 137Google Scholar.

57 ICJ Adv. Op., op. cit. (note 4), paras. 107–112.

58 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 31/08/2001. E/C.I2/l/Add.69.

59 Pejic, Jelena, “The right to food in situations of armed conflict: The legal framework,” International Review of the Red Cross, Vol. 83, No. 844, December 2001, p. 1097Google Scholar; Perrin, P. (ed.) Handbook on War and Public Health, ICRC, Geneva, 1996Google Scholar; Taipale, I. (ed.), War or Health: A Reader, Zed Books, London, 2002Google Scholar.

60 Ibid.

61 Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000).

62 Ibid.

63 See note 5 above.

64 Confirmed both by human rights bodies and by the ICJ, see notes 3, 4, 5, 11, 12, 13 and 59 above.

65 Roberts, A., “Prolonged military occupation: The Israeli-occupied territories 1967–1988,” American Journal of International Law, Vol. 84, 1990, p. 71Google Scholar.

66 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, para. 6.

67 Article 38 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949.

68 Ibid., Article 56.

69 There is a presumption against taking retrogressive measures, op. cit. (note 62), para. 32.

70 For more on this see the present author's chapter in Legacy of Injustice, Physicians for Human Rights, Israel, November 2002.