Some Thoughts on the Relationship Between International Humanitarian Law and International Human Rights Law: A Plea for Mutual Respect and a Common-Sense Approach
© T.M.C. Asser Press and the authors 2015
Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_99. Some Thoughts on the Relationship Between International Humanitarian Law and International Human Rights Law: A Plea for Mutual Respect and a Common-Sense Approach
(1)
University of Amsterdam, Amsterdam, The Netherlands
9.1 Introduction
9.4 The Application of IHL and IHRL in the Context of Hostilities and Law Enforcement in Armed Conflict
Abstract
This essay provides a commentary on the ongoing discussion of the relationship between the two legal regimes and attendant paradigms of hostilities and law enforcement in armed conflict. The discussion has, to an extent, taken the form of a disconnect between the IHL and IHRL communities. In order to get past this, a plea is made here to apply basic well established tools of legal methodology, to apply both regimes within their respective scope of application and to utilise common sense in determining which regime is the most relevant to a particular situation. This is in the interest of legal coherence and maintaining respect for the law, as well as in the interest of the persons the law is meant to protect.
Keywords
Relationship international humanitarian law and international human rights lawApplicabilityInterpretationLegal methodologyT.D. Gill is Professor of Military Law at the University of Amsterdam and the Netherlands Defence Academy. This contribution has been published in the Liber Amicorum for Dr. Leo Zwaak, Y. Haek et al. (eds.) The Realisation of Human Rights: When Theory Meets Practice, Intersentia Publishers (2014) and is reproduced here with the kind permission of the editors. It formed the basis of the author’s comments as a keynote speaker at the ‘Boundaries of the Battlefield’ symposium in January 2013, which are reproduced here in slightly more comprehensive form. All websites were last accessed 10/05/2013.
9.1 Introduction
The relationship and interplay between international humanitarian law (IHL) and international human rights law (IHRL) has become a topic that has received considerable attention in policy debates, judicial decisions and academic opinion over the past two decades.1 This short essay does not pretend to provide an in-depth analysis of the way this relationship has developed through the case law and official standpoints of human rights courts and supervisory bodies, nor will it attempt to reproduce the viewpoints of various authors in detail and subject these to a critical analysis. Still less does it set out to provide a comprehensive answer to how all questions which can arise in the application of these two sub-disciplines of international law should be resolved. Instead, its basic purpose is to set out a number of observations and criteria which could assist in determining how the two bodies of law interact, and how they could be applied in practice with a view to promoting a fruitful interaction between IHL and IHRL, promoting protection of victims and vulnerable groups in armed conflict and in other military operations outside a situation of armed conflict, while at the same time taking account of the realities of armed conflict and of military considerations.
The essay will first set out the basic object and purpose of both sub-disciplines and provide some observations concerning the basic terms of their applicability. It will then briefly discuss the main approaches to determining their mutual relationship and interaction, including, in particular, the role of the principle of lex specialis derogat legi generali (the lex specialis principle), both as a means of interpretation and as an instrument for resolving conflicts between legal rules and regimes when they occur. It will then apply the above to two situations and normative paradigms: the conduct of hostilities and the maintenance of public order and law enforcement. It will conclude with a number of final observations relating to the basic purpose of the essay as set out above.
9.2 Basic Purposes and Applicability
Both IHL and IHRL are sub-disciplines of public international law and share a number of basic characteristics as a result, such as what their respective sources and subjects are, common principles and rules of interpretation and concepts such as jurisdiction and responsibility for breaches of international obligations. As such, both are governed primarily by multilateral international conventions and international customary law, and additionally by other sources of international law. Both relate primarily to States as the prime actors in the international legal system, but also and increasingly to a variety of non-State actors, albeit in somewhat different ways, with IHL having a more horizontal structure of obligations between belligerents, while IHRL is more vertically structured as obligations resting upon a State in relation to persons subject to its jurisdiction.
The basic purpose of IHL is and always has been two-fold. First, to regulate and—to some degree—mitigate the conduct of hostilities between belligerent parties; and second, to provide protection to specific categories of persons and to certain objects, which are either particularly vulnerable or which require an enhanced degree of care or protection (such as medical installations and transports) and persons in the hands of or under the control of the adversary. The law of war, to use its more traditional name, is one of the oldest branches or sub-disciplines of international law and has its roots in both natural law concepts and doctrine, and in ethical, professional and proto-legal codes of conduct incorporating notions of military honour and chivalry, which date back centuries. By the eighteenth century, it had become a customary set of legal rules and principles, which were codified over the course of the nineteenth and twentieth centuries into a dense set of rules and obligations in a number of international conventions, many of which have long had or have more recently obtained customary status. It is based on a number of basic principles, the two most important of which are the principle of military necessity and the principle of humanity. The former allows for the application of force, including lethal force, and the infliction of injury, damage and destruction, which is required for realising the objectives of the conflict, within the limits imposed by humanitarian law. The latter prohibits the use of weapons and methods of combat that inflict unnecessary suffering and/or are inherently indiscriminate in nature. It additionally provides for special regimes of protection for specific categories of persons who have been rendered helpless or have fallen into the hands or under the control of the adversary. None of the rules and prohibitions contained in it is susceptible to derogation.2
The basic purpose of IHRL is to provide the citizens and inhabitants of a particular State with a number of freedoms and protection from arbitrary or discriminatory interference and treatment by the State and its agents, and to require the State to provide a legal framework to secure these rights and freedoms, as well as (to undertake) to provide essential social, economic and cultural safeguards and security to its population. It has some of its roots in the period of the Enlightenment, with respect to basic civil and political rights and freedoms, and some in the gradual provision of primary education, social legislation and workers’ rights, starting from the late nineteenth century. Its codification at the international level came after the Second World War, and its development has gained in momentum and importance during the last decades of the twentieth century. It is based on a number of international and regional conventions, and certain of its provisions have obtained customary status, some of which may be derogated from in times of emergency.3
IHL is applicable to all parties to an armed conflict of either an international or non-international nature, irrespective of the motivations of the parties, or the legality (or lack thereof) of the recourse to force by either of them. The former type of conflict refers to any clash between the armed forces of two or more States, or any occupation by a State of another State’s territory, whether total or partial, irrespective of whether such occupation is forcibly resisted. The latter refers to hostilities between a State and (an) armed group(s), or between armed groups within a State, of an organised, intensive and protracted nature. This includes armed rebellion, armed insurrection and civil war, but does not extend to situations of mob violence, riots and criminal activity. In temporal and geographical terms, an international armed conflict occurs from the outbreak of hostilities or onset of an occupation until a peace agreement is reached, or a sustained and general cessation of hostilities occurs. It applies within the territory of the belligerent States and also applies within the ‘international commons’ (all maritime areas and airspace not forming part of the territory of a non-belligerent State) wherever and whenever hostilities and other military operations extend to such areas. The territory of non-belligerent or neutral States is inviolable unless one of the belligerent parties conducts operations from neutral territory and the neutral State fails to take adequate measures to halt such operations after being called upon to do so by the injured party.
Non-international armed conflicts take place normally within the confines of a single State, but in some cases can spill over into the territory of a neighbouring State (or States) to the extent that an armed group displaces or is displaced to another State’s territory and conducts operations from there without being prevented from doing so by the authorities of the State whence it conducts such operations.4 A non-international conflict commences when the material conditions for the existence of a non-international armed conflict (organisation and intensity and protracted nature of hostilities) are fulfilled and ends upon the conclusion of a peace agreement between the government and opposing armed groups, or when the material conditions are no longer fulfilled.
IHRL applies at all times within a State’s territory, or with respect to areas or persons within its jurisdiction or under its effective control. Aside from permissible derogations, it does not cease to apply during armed conflict and will apply to extraterritorial military operations, within the context of an armed conflict, or below the threshold thereof, to the extent that either a particular geographical area or persons are under its jurisdiction or effective control, irrespective of whether such jurisdiction is exercised lawfully.5
9.3 Main Approaches to the Relationship and Interaction Between IHL and IHRL
While the discourse relating to the relationship between IHL and IHRL is an ongoing process, it is fair to say that there are basically three main approaches relating to how the two sub-disciplines relate to and interact with each other. The traditional approach in international law up to comparatively recently was that the law of peace, including human rights law, applied in peacetime and that the law of war and of neutrality applied in wartime. That is reflected inter alia in traditional international law textbooks up to and including the first two decades of the period after the Second World War, and in international conventions and practice of that period. In the present, this strict separation is still adhered to by only a handful of States, most notably the US and Israel, which have taken the view that during armed conflict, IHL is the sole basis of legal obligations for parties to the conflict, and/or that IHRL is not applicable, or in any case is wholly set aside by IHL in the context of (extraterritorial) military operations. Another approach that is put forward by certain academics and human rights advocates is that IHL is a branch of human rights law and that to the extent they differ, it is necessary to adjust and apply IHL with a view to make it conform more closely to human rights standards, particularly in the context of non-international armed conflicts. This is sometimes referred to broadly as ‘the humanisation of IHL’. A third approach, which at present seems to reflect prevailing opinion and practice, is that the two bodies of law are basically complementary and in the event that they actually collide, to apply the rule which is most specific and relevant to the issue at hand. This is sometimes referred to by reference to the general principle of law known as the lex specialis principle, referred to previously in the introduction. In my view, the third approach is the most persuasive and coherent for a number of reasons.6
On the one hand, a strict ‘separationist’ approach is not only outmoded, but also inaccurate as a matter of law, as it is clear that human rights conventions are clearly intended to apply in armed conflict and contain provisions that allow either for derogation or accommodation of IHL in situations of armed conflict. Moreover, it would also seem clear on the basis of consistent jurisprudence by human rights courts and other national and international courts and tribunals, that human rights law and conventions are applicable in any situation in which a State or its agents exercise jurisdiction or control over territory or individuals. There is no reason, in principle, why this would not be the case in the context of an armed conflict, although this does not necessarily answer the question as to when such jurisdiction or control is established, a point to which I will return subsequently. On the other hand, the second approach ignores the distinct nature and function of the two bodies of law and most notably ignores the incontrovertible fact that States have seen fit to devise a specific body of law to apply to situations of armed conflict and continue to develop and apply it to the present day. Leaving aside the fact that IHL and IHRL do not share a common historical development, and despite a degree of overlap are framed and structured differently, they are distinct in their basic functions and approaches, notwithstanding certain undeniable shared basic principles and purposes. IHL is essentially a balance between humanitarian and military considerations. Ignoring the latter, while solely or primarily concentrating on the former, undermines one of its basic purposes and tenants, which is to mitigate the effects of war while not preventing the conduct of hostilities, including the application of force within the accepted confines of the law and the treatment of certain categories of persons, such as prisoners of war and civilians in occupied territory, which balances both sets of considerations. If parties to an armed conflict feel the law ignores or unduly underplays military considerations, they may well choose to ignore the law entirely as a means of ensuring success on the battlefield. This would obviously be counterproductive and at variance with what both legal regimes are intended to prevent.
This in a nutshell is why the third approach seems to be the most rational and coherent solution. More to the point, it reflects both the essential reality of armed conflict and the fact that States have clearly devised two separate—but essentially complementary—bodies of law to deal with that reality. To the extent that they collide, it makes sense to apply the rule which most closely relates to or was specially devised to apply to a particular situation and/or which provides the most detailed regulation of what is allowed or prohibited. The term lex specialis