Relationship between human rights law and international humanitarian law – CHR Sub-Comm. – Working paper (excerpts)

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 ^*

Summary

  The present working paper is in two parts. Part I, by Mr. Salama, addresses generally the issue of the relationship between human rights law and international humanitarian law, identifying areas of possible further study, particularly with regard to prevention and to the institutional response to violations in situations of conflict. Part II, by Ms. Hampson, examines whether the two legal regimes can be simultaneously applicable, in the light of the jurisprudence of human rights treaty bodies and special procedures. It suggests that, where international humanitarian law is applicable, it should be taken into account by human rights bodies. Part II then considers the extent to which human rights law is applicable extraterritorially, again in the light of the practice of human rights bodies. The paper concludes by identifying areas which could be the subject of further study. The authors consider that it would be highly desirable to create a working group of the Sub-Commission to consider these issues.

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INTRODUCTION 

1.   In decision 2004/118 the Sub-Commission asked Françoise Hampson and Ibrahim Salama to prepare a working paper on the relationship between human rights law and international humanitarian law. The present document is submitted in accordance with that request.

PART ONE

Introduction

2.   “When it comes to laws on the books, no generation has inherited the riches that we have. We are blessed with what amounts to an international bill of human rights, among which are impressive norms to protect the weakest among us, including victims of conflict and persecution … . But without implementation, our declarations ring hollow. Without action, our promises are meaningless.” Those words of the United Nations Secretary-General in his report “In larger freedom, towards development, security and human rights for all”, ¹ describe a dilemma for the human rights movement, a tragedy for the victims of human rights violations and international humanitarian law (IHL) violations and a challenge for the Sub-Commission on the Promotion and Protection of Human Rights to consider and reflect upon.

3.   Armed conflict by definition defies the basic idea of modern law. Ensuring minimal respect for human rights and dignity during armed conflicts continues to challenge the international community. The difficulties of reconciling the contradictory notions of order and disorder, law and force, human dignity and war could only be aggravated by scientific development, weapons of mass destruction, terrorism and many other modern transnational phenomena. The worst of all these phenomena undoubtedly remains the widening gap between moral progress and technological advances. A fundamental requirement for the human rights community in facing these challenges and bridging that gap is to be constantly inspired by the inextricable links between human rights law (HRsL), IHL and international refugee law, which all emanate from the same basic concern: ensuring respect for human dignity in all times, places and circumstances. Remembering this fundamental raison d’être is a prerequisite for breathing new life into IHL.

4.   Contrary to major HRsL conventions, IHL is not monitored by treaty bodies or any other viable and binding mechanism to supervise its implementation and contribute, through both general and specific comments, to its progressive development. In an era when the defining theme of the international community and the key factor in international policy-making is human rights, it is inadmissible and unjustifiable that such a huge protection gap be hidden behind artificial distinctions and false legalistic arguments. Even if one disagrees with some of its implications, the main thrust of the following statement by the Secretary-General remains undebatable: “no legal principle – not even sovereignty – should ever be allowed to shield genocide, crimes against humanity and mass human suffering”. ² 

II. APPLICABILITY OF HRsL AND LOAC/IHL

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57.   The International Court of Justice has addressed the issue twice, first in the Advisory Opinion on the Legality or Threat of Use of Nuclear Weapons ³⁰ and, more recently, in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. ³¹ In the latter case, the Court addressed expressly the legal regimes applicable in the situation before it. The Court confirmed the de jure applicability of the Fourth Geneva Convention and then considered the applicability of HRsL.

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International treaty bodies

58.   The international treaty bodies have themselves had to consider the issue. For reasons of space, it will only be possible to analyse the comments of the Human Rights Committee (HRC) and the Committee on Economic, Social and Cultural Rights (CESCR). It should be noted, however, that other treaty bodies have also had to address the question, directly or indirectly. ³³ 

59.   In reaching its Opinion, the Court relied on and endorsed the current practice of the HRC. The relationship between HRsL and LOAC/IHL has often arisen in the context of derogation.

60.   In 2001, the Human Rights Committee adopted general comment No. 29 (2001) on derogations during a state of emergency. ³⁴ The Human Rights Committee first made it clear that the Covenant can be applicable in situations in which the law of armed conflict is applicable. ³⁵ It then went on to explain its competence with regard to other legal regimes which might be applicable alongside the Covenant. ³⁶ 

61.   The Committee also suggests that when examining the necessity for a particular measure in derogation of the Covenant, it can take the law of armed conflict into account. ³⁷ This still does not explain how the Committee will interpret an action or measure which is consistent with the law of armed conflict but arguably in violation of human rights law. The most significant issues in this regard are the non-derogable prohibition of arbitrary killing (art. 6) and the potentially derogable prohibition of arbitrary detention (art. 9). As far as the rights of a detained person are concerned, the Committee is of the view that they play a vital role in relation to the non-derogable prohibition of torture, cruel, inhuman or degrading treatment or punishment. As a result, the Committee regards particular elements of the potentially derogable article 9 as being, in effect, non-derogable. ³⁸ The general comment gives an example of the operation of such a principle. ³⁹ 

62.   The general comment expressly envisages the use of the law of armed conflict for two purposes: to determine whether a State is prohibited from introducing a particular measure and to determine the necessity of a measure which a State wishes to adopt in a situation of emergency. In both cases, the effect is to ensure conformity with the law of armed conflict. The general comment suggests that the Human Rights Committee can address any alleged human rights violation within its jurisdiction, even in situations of armed conflict. It does not explain to what extent it might use the law of armed conflict in interpreting the scope of a substantive obligation; for example, to determine what constitutes an arbitrary killing. It is submitted that the Advisory Opinion of the International Court of Justice would require the HRC to take LOAC/IHL into account when determining that a killing was arbitrary in circumstances in which LOAC/IHL was applicable. That principle would apply even in non-international armed conflicts.

63.   CESCR is clearly of the view that States are accountable for such policies, even in situations where LOAC/IHL is applicable, since it has sought to call Israel to account for policies in the Occupied Territories. ⁴⁰ It is equally clear that Israel asserts that, where LOAC/IHL is applicable, it displaces the applicability of HRsL.

International special procedures

64.   Many of the mandates relate to problems which arise in situations of conflict, such as torture; summary, arbitrary and extrajudicial executions; arbitrary detention; internally displaced persons and disappearances. Country mandates include or have included Afghanistan, Iraq, the Sudan, Somalia, Liberia and the Palestinian Territories occupied since 1967. The reports of those holding country mandates in situations of conflict and General Assembly resolutions referring to those mandates have routinely referred to both human rights law and the law of armed conflict, usually in fairly general terms. ⁴¹ 

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Notes 

¹    A/59/2005, 21 March, 2005, paragraph 129.

²  Ibid.

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³³ An article and a protocol to the Convention on the Rights of the Child expressly address an issue which arises in situations of conflict – the conscription or recruitment of child soldiers and their participation in conflict; Convention on the Rights of the Child, Article 38 and second optional protocol. The Convention against Torture addresses a phenomenon that is prohibited in all circumstances. LOAC/IHL prohibits the infliction of torture or cruel or inhuman or degrading treatment or punishment in both international and non-international conflicts. In the case of CEDAW, CERD and the Convention on Migrant Workers, the treaty bodies may have to address the issue indirectly.

³⁴ CCPR/C/21/Rev.1/Add.11. To the best of the author’s knowledge, no State has commented on the General Comment. This is in contrast to the situation after the HRC adopted General Comment 24 on reservations to human rights treaties. Three States, France, the UK and the USA, criticised certain paragraphs in that General Comment. Where a State does not object to a General Comment, especially where that particular State has in the past criticised a General Comment, that may be thought to imply, if not approval, at least non-objection. This is particularly important in the case of General Comments 29 and 31; see further below.

³⁵ “The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.”; ibid, para.3, emphasis added. The immediately preceding sentence makes it clear that “armed conflict” is being used to describe a situation in which LOAC is applicable; “During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers.” Dennis, in the context of an article disputing the extra-territorial applicability of HRsL, cites evidence from the negotiating record with regard to ICCPR Article 4 which in fact supports the continued applicability of non-derogable HRsL in time of war. States were expressly trying to ensure that the article was consistent with the general international rules regarding the non-applicability of legal obligations in time of war, unless the obligation provided for continued applicability. The UK legal adviser suggested that the purpose of Article 4 was to prevent States from arbitrarily derogating from human rights obligations “in time of war”. War, unlike armed conflict, is a technical term and can only exist between two States. The annotation prepared by the Secretary-General again suggested that the function of Article 4 was to make express provision for limited continued applicability “in time of war”. This evidence does not address extra-territorial applicability but continued applicability in situations of conflict. Dennis M., “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation”, 99 AJIL (2005) p. 119 at pp.137-8.

³⁶ “Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party’s other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant.”; ibid, para.10.

³⁷ “As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations.”; ibid, para.16.

³⁸ “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.”; ibid, para.16.

³⁹ Ibid, Footnote 9 in para. 16 states in part “See the Committee’s concluding observations on Israel (1998) (CCPR/C/79/Add.93), para. 21:  “… The Committee considers the present application of administrative detention to be incompatible with articles 7 and 16 of the Covenant, neither of which allows for derogation in times of public emergency … .  The Committee stresses, however, that a State party may not depart from the requirement of effective judicial review of detention.” It should be noted that certain States, whilst not apparently objecting in principle to the possible applicability of the two legal regimes, have objected to particular manifestations of it. So, for example, the Netherlands objected to attempts by the HRC to raise events in Srebrenica; UN Doc. CCPR/CO/72/NET/Add.1, para. 19 (2003) cited in Dennis; note 35, p.125, footnote 47. This is a particularly interesting case because it is not clear that LOAC/IHL is applicable in peace support operations.

⁴⁰ ICJ, note 31, para.112 – the Court expressly endorsed the Committee’s view.

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