Promotion and protection of all human rights/Protecting human rights of civilians in armed conflict – HRC 14th session – Report of the UN High Commissioner for Human Rights (excerpts)

Report of the Office of the High Commissioner on the outcome of the expert consultation on the issue of protecting the human rights of civilians in armed conflict*

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* The present report was submitted late in order to take into account the expert consultation held on 31 March 2010.

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I. Introduction

1. In its resolution 9/9 on the protection of the human rights of civilians in armed conflict, the Human Rights Council invited the United Nations High Commissioner for Human Rights to convene an expert consultation, open to the participation of Governments, regional organizations, relevant United Nations bodies and civil society organizations, and in consultation with the International Committee of the Red Cross, on the issue of protecting the human rights of civilians in armed conflict. As requested by the Council, the Office of the High Commissioner for Human Rights reported on the outcome of this consultation, in the form of a summary of discussions, to the Council at its eleventh session.

2. In its resolution 12/5 the Council took note with appreciation of the report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the outcome of the expert consultation on the protection of the human rights of civilians in armed conflict (A/HRC/11/31) and invited the Office of the United Nations High Commissioner for Human Rights to convene, within the parameters set forth in paragraph 8 of Council resolution 9/9, a second expert consultation on the issue of protecting the human rights of civilians in armed conflict, with a view to enabling the completion of the consultations on this issue. The Council further requested the Office of the High Commissioner to report on the outcome of the consultation, in the form of a summary of discussions, to the Council at its fourteenth session. The present report is submitted in accordance with that request and provides a summary of the discussion by the experts. The draft was circulated to the experts for their comments.

3. The Office of the High Commissioner for Human Rights consulted with the International Committee of the Red Cross (ICRC) on the expert consultation and in a letter dated 3 March 2010, the High Commissioner brought the resolution to the attention of the President of the ICRC and invited him to appoint a focal point for the purpose of following-up the consultations.

4. The expert consultation was announced on the OHCHR website. On 9 March 2010, notes verbales were sent to all permanent missions in Geneva.

5. The expert consultation was held in Geneva on 31 March 2010. Representatives from 24 Member States of the United Nations: Argentina, Armenia, Austria, Azerbaijan, Bahrain, Bosnia and Herzegovina, Brazil, Canada, Egypt, Ethiopia, France, Germany, Greece, Pakistan, the Russian Federation, Saudi Arabia, Sri Lanka, Sweden, Switzerland, the Netherlands, Turkey, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Uruguay, as well as representatives the European Union and the European Council and representatives from civil society organizations, attended the expert consultation.

6. The expert consultation comprised one opening session and four substantive sessions. The substantive sessions were structured around the different human rights mechanisms: (a) Human Rights Council special procedures; (b) human rights treaty bodies; (c) international and regional judicial organs; and (d) other human rights mechanisms, including international fact-finding missions and commissions of inquiry, the universal periodic review of the Human Rights Council, and activities undertaken by international civil society organizations acting in the context of armed conflicts.

7. The Office of the High Commissioner for Human Rights opened the expert consultation. It was recalled that over the years, the General Assembly, the Security Council, the Commission on Human Rights and more recently the Human Rights Council, have considered that in situations or armed conflict, parties to the conflict have legally binding obligations concerning the rights of persons affected by the conflict. The Council has recognized the importance and urgency of the effects of armed conflicts on the human rights of civilians. In line with international jurisprudence and the practice of relevant treaty bodies, the Council acknowledged that human rights law and international humanitarian law are complementary and mutually reinforcing, taking into account that human rights law continues to apply in armed conflict situations.

8. It was recalled that in the 2009 expert consultation, the question of the applicable legal framework in situations of armed conflict, in particular the continued application of international human rights law in situations of armed conflict, was thoroughly discussed. Against that background, the meeting aimed to discuss the way in which existing mechanisms for monitoring and ensuring compliance of human rights obligations and accountability for violations have undertaken their particular mandates when addressing situations of armed conflict.

9. In this respect, it was worth noting that the Office of the High Commissioner works to respond to human rights and humanitarian law concerns across the world. The Office engages with all relevant actors, including non-State actors, for the purpose of ensuring the observance of relevant international human rights and humanitarian law. OHCHR also monitors and reports on alleged violations by State and non-State actors. The High Commissioner also issues periodic reports referring to, inter alia, violations of international human rights law and international humanitarian law by parties to a conflict.

10. It was stated that the Office of the High Commissioner is not alone in this endeavor. The human rights system has a wealth of different mechanisms that have developed, within the framework of their mandates, a solid experience concerning the implementation of human rights in situations of armed conflict. Special procedures of the Human Rights Council, treaty bodies, international and regional courts, and civil society organizations have all, in different ways, provided the operational mechanisms to monitor, promote and protect the human rights of civilians in the context of armed conflict. In that context the expert consultation aimed to address the experience of special-procedures mandate holders have had in reporting to the Human Rights Council on human rights issues in conflict situations. Indeed, a number of special rapporteurs have, through their legal analyses, contributed in clarifying the extent and nature of the legal obligations of parties to armed conflict. They have also provided the Council with relevant information and analyses and have proposed measures to tackle systematic violations of international human rights and international humanitarian law in different contexts.

11. The expert consultation also sought to address the case-law of treaty bodies, both through their general comments as well as in the context of their analysis of country reports and individual complaints. One issue of particular importance in this respect was the extra-territorial applicability of human rights treaties, in particular when a State party undertakes military operations on the territory of another State. Similarly important is the experience of treaty bodies in dealing with derogations from human rights treaties. Treaty bodies have clarified the extent, scope and limitations applicable to derogations.

12. Furthermore, the meeting also aimed to deal with the way in which judicial bodies, in particular the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights, within their respective jurisdictions have addressed questions of applicability of human rights and international humanitarian law. These issues are of particular importance, in light of the need to ensure accountability, both from the perspective of international State responsibility and in relation to individual criminal responsibility. Indeed, often the legal characterization of many acts can only be ascertained if the situation is analyzed from both perspectives. The protection of the human rights of civilians against those and other violations is better served when this complementarity between international human rights and international humanitarian law is duly recognized.

13. It was recalled that the impact of these issues on the ground is visible on a frequent basis. One challenge is to reflect on more effective ways to ensure that human rights and humanitarian law are respected by parties to conflicts. Another challenge is to focus on means of ensuring accountability for those violations when they occur.

14. Georges Abi-Saab introduced the meeting by recalling that during the first expert consultation of 2009, extensive reference was made to the combined application of international human rights law and international humanitarian law in situations of armed conflict. He noted that in practice only one norm applies to each concrete situation. When applicable international human rights norms and international humanitarian norms yield similar results, there is no need for a complex legal analysis. However, he noted that the international law system has evolved to greater specialization and that, therefore, in certain exceptional situations, principles such as that of lex specialis is required to determine which is most detailed norm that applies to each concrete and individual case. Therefore, the combined application of international human rights law and international humanitarian law does not mean two norms are to be applied simultaneously, but rather that one should seek to identify the norm that provides the most specific answer for each particular situation.

15. Mr. Abi-Saab pointed out that, given that the 2009 expert consultation had clarified the legal and substantive questions of the continuous and mutually reinforcing application of international human rights law and international humanitarian law in situations of armed conflict, the meeting was designed to address the question of how different human rights mechanisms have implemented, in their practice, their respective human rights mandates in the context of armed conflict, taking into account the complementary application of international human rights law and international humanitarian law. Such experience, in the form of judicial decisions, treaty bodies’ general comments and concluding observations, special rapporteurs’ reports to the United Nations bodies, and others, constitute a rich body of practice that should be incorporated in the work of the relevant United Nations organs, in particular the Human Rights Council.

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II. Session 1: Special procedures’ experience in protecting human rights in armed conflict

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22. It was noted in this connection that the Special Rapporteur on the promotion and protection of human rights while countering terrorism recalled in the report of his mission to the United States of America (A/HRC/6/17/Add.3) that it is a well-established principle that, regardless of issues of classification, international human rights law continues to apply in armed conflict. In that respect, he reminded the government that its conduct must therefore comply not only with international humanitarian law, but also with applicable international human rights law. In the report on his mission to Israel (A/HRC/6/17/Add.4) he stated that the legal framework against which Israeli measures against terrorism are to be addressed is the combined effect of international humanitarian law and international human rights law. He further noted with regard to the applicability of substantive norms of international humanitarian law that international humanitarian law norms pertaining to international armed conflict are also applicable and that the classification of an armed conflict as an international or non-international one can no longer be treated as having major substantive consequences for the international humanitarian law obligations of a State that is a party to an armed conflict.

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29. Experts also recalled that the Human Rights Committee has issued concluding observations in which it has referred to the application of the Covenant to situations of armed conflict. In its concluding observations on the United States of America’s periodic report (CCPR/C/USA/CO/3/Rev.1), for example, the Committee noted with concern the restrictive interpretation made by the State of its obligations under the Covenant, as a result, in particular, of its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice. Experts further indicated that, in its concluding observations on Israel’s periodic report (CCPR/CO/78/ISR), the Committee noted the State party’s position that the Covenant does not apply beyond its own territory, notably in the West Bank and in Gaza, especially as long as there is a situation of armed conflict in these areas. The Committee reiterated the view that the applicability of the regime of international humanitarian law during an armed conflict does not preclude the application of the Covenant. The Committee further noted that the applicability of the regime of international humanitarian law does not preclude accountability of States parties under the Covenant for the actions of their authorities outside their own territories, including in occupied territories.

30. It was also indicated that the Human Rights Committee had expressed its concern in relation to the use by Israel of targeted killings of those identified by the State party as suspected terrorists in the Occupied Territories. In the view of the Committee such practice raised concerns in relation to the protection of the right to life under the Covenant. The Committee, therefore, recommended that the State party should not use targeted killings as a deterrent or punishment and that before resorting to the use of deadly force all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted. The Committee further recommended that complaints about disproportionate use of force should be investigated promptly by an independent body.

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IV. Session 3: The role of judicial organs in implementing human rights obligations in armed conflict

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40. The International Court of Justice has been requested to deal with a growing number of cases involving serious violations of human rights and humanitarian law and has focused on such disputes not only from the perspective of the rights and duties of States, but also from that of the rights of individuals, addressing human rights in armed conflict situations, the relationship between State and individual responsibility, as well as questions of restitution and compensation to individual persons. Recent cases include the Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory); …

41. Experts recalled that the Court’s decisions in the field of human rights have reflected a visible trend towards complementarity between international human rights law and international humanitarian law. The Court, for example, insisted on the application of human rights in armed conflict, thus continuing the trend developed in the context of human rights treaty bodies. In the Nuclear Weapons advisory opinion, it recognized the continued existence of the International Covenant on Civil and Political Rights in time of armed conflict, in particular the right to life. In the Wall advisory opinion, while confirming the continuing applicability of human rights instruments to the extent that they had not been derogated from, the Court stated that as regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some issues 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. This passage was reiterated in the Congo v. Uganda case, in which the Court found that both massive human rights violations and grave breaches of international humanitarian law had been committed by Ugandan military forces on the territory of the Democratic Republic of the Congo.

42. Moreover, experts indicated that in the Wall advisory opinion, the Court reaffirmed the application in time of armed conflict not only of the International Covenant on Civil and Political Rights, but also of all human rights instruments, including the Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.  …

44. …  In the Wall advisory opinion it also concluded that the major human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories.

45. Finally, in relation to the obligation to pay reparations for international human rights and international humanitarian law violations, experts noted that in the Wall advisory opinion the Court declared that in the event of the impossibility of restitution, Israel was under an obligation to make reparation to all natural or legal persons who have suffered any form of material damage as a result of the wall’s construction in the Occupied Palestinian Territory. This was a landmark decision for the Court in acknowledging the duty of a State to make such reparations to individuals, as opposed to the traditional right of diplomatic protection where the State had a right of reparation for breach of its own interests.

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