This is the second of two articles dealing with aspects of the relationship between the law of armed conflict (LOAC) and human rights law (HRD). HRsL bodies have long dealt with cases arising from situations of armed conflict, although the applicability of DCA has often been denied. For the armed forces to accept the judgment of the HRsL bodies, it must be clear that the latter take the context into account and do not judge on the basis of the outcome of an attack or with hindsight. In situations where the DCA must be taken into account, the law must be interpreted and applied as it would be under the DCA and not as an HRsL treaty.
Denial of armed conflict by the State and applicability of DCA
In some cases of violence, even widespread and organized, a State may deny the existence of an armed conflict. Examples of such situations include the UK in relation to Northern Ireland during “The Troubles”, the struggle in the 1990s against the Kurdistan Workers’ Party in eastern Turkey, and Russia during and since the second Chechen war. In such situations, there can be no question of an HRsL taking into account the DCA as such, since the State will not seek to rely on it. But the body will examine the factual situation of conflict in which the alleged violation occurred. In the first two situations above, the State had derogated under the European Convention on Human Rights (ECHR). It is not yet clear whether the HRsL override threshold is at the same level of violent disturbance as Article 3 common to the Geneva Conventions which regulates hostilities in situations of non-international armed conflict.
When dealing with individual complaints alleging human rights violations, the HRsL treaty bodies take a very contextual approach and are acutely aware of the risk of judging with hindsight. For example, in the case of McCann and others v. UK (Gibraltar murders), the European Court of Human Rights (ECHR) found that the British Special Air Service men who opened fire did not breach the ECHR. They had a reasonable but incorrect belief that members of the Irish Republican Army were able to detonate an explosive device from a distance. The UK, however, breached the ECHR by failing to plan the operation in such a way as to avoid having to use lethal force.
HRsL bodies have four “tools” to manage these situations. First, some rights contain limitation clauses. The state can interfere with the exercise of the law when necessary, on defined and proportionate grounds.
Second, the claimant may raise a number of separate alleged violations, but the HRsL body may focus on only some of them. As frustrating as this may sound in law, this allows an HRsL body to focus on planning issues and taking precautions, rather than an analysis of actual combat.
Third, the organs of the HRsL take into account the precise configuration of the circumstances, including the forces employed and the weapons used.
Examples will illustrate the second and third “tools”, which often coexist. In Tagayeva v. Russia (Beslan School Massacre), the ECHR focused on the lack of precautions in the face of known threats to schools in the area. In Finogenov v. Russian Federation (Moscow Theater Siege), the European Court of Human Rights focused on the insufficient medical assistance at the scene and the fact that doctors in nearby hospitals had not been informed of the substance which had been used. This prevented the administration of the correct antidote.
The fourth tool is derogation, a formal process defined in the relevant treaties. The HRsL instance determines if the situation is eligible. The measures adopted must be necessary and proportionate (see Aksoi c. Turkey, ECHR). Certain rights, including the prohibition of arbitrary executions and torture, are non-derogable. The detention provision is potentially overriding, which may be necessary to legitimize internment.
State dependence on the DCA
Where a state concedes the applicability of the DCA or where the DCA clearly applies as an objective matter, the legal task of the HRsL bodies changes. The challenge is not unusual for (quasi-)judicial mechanisms in specialized areas. They only have the power to rule on violations of the rules in their own area. How should they interpret the rules normally applicable when they clash or oppose other rules binding on the parties? Three situations must be distinguished.
United Nations Security Council Chapter VII Resolutions
Where such a UN resolution requires specific action, the HRsL bodies give effect to Article 103 of the Charter of the United Nations. This is not the case when the resolution simply authorizes an action (Al-Jedda v. UK, ECtHR) or when it requires national authorities to adopt the necessary measures. In such cases, the State must give effect to the UN Security Council resolution, taking into account its human rights obligations (Sayadi & Vinck c. BelgiumHuman Rights Committee).
Rules on the functioning of the international legal system
HRsL, like other areas of international law, is subject to the application of these rules. For example, in Al-Adsani v. UKthe ECtHR recognized that the United Kingdom could deny the applicant access to a court due to the rules of sovereign immunity.
Relationship to rules in other areas of international law
This is not limited to the relationship with the DCA. Questions have arisen concerning environmental law and the law of the sea. It should be noted that no State, to date, has chosen to invoke the LOAC in an armed conflict on national territory. The European Court of Human Rights has tackled the question of the relationship with the DCA head on in the case of Hassan v. UKwhich involved detention in Iraq during the International Armed Conflict (IAC) phase.
The DCA must be applicable for the HR organization to take it into account. It is unclear what will happen when the territorial state denies the applicability of the DCA but an assisting state seeks to avail itself of it. The European Court of Human Rights obliges the State itself to invoke the DCA. The view of other agencies is unclear. This can make a difference when invoking the DCA is intended to modify the otherwise applicable rule. It is not clear whether a State must derogate in order to invoke the DCA. The ECHR, obiter, said it was necessary in non-international armed conflicts (NIAC). It should be remembered that much of what happens during an armed conflict has nothing to do with the fighting and is not subject to DCA.
It is much easier for HRsL bodies to heed DCA treaty rules which have been universally (1949 Geneva Conventions) or largely (1977 Additional Protocols) ratified. Due to the greater specificity of the treaty rules in CAIs, particularly with regard to the conduct of hostilities, it is easier for a human rights body to take into account the DCA rules in CAIs than in the CANIs. It is unclear what attitude HDR bodies will take to alleged customary rules, always assuming that the state can prove that the alleged rule exists.
Top down solutions will not work. The relative importance of DCA depends on a series of factors. Remember, this is not DCA or HRsL; HRsL still applies. This can be summed up by saying that the closer the alleged violation was to active hostilities, the greater the focus will be on DCA. In CAIs, this can be extended to all relations between armies. Three examples will illustrate how the principle works. These are speculative, given current case law, but the direction of travel seems clear.
The situations in which States resort to security detention involve a number of human rights. Yet the LOAC simultaneously offers elaborate regulation of internments and detention. The ECHR Hassan case involved detention under the Third or Fourth Geneva Conventions of 1949. The European Court of Human Rights has recognized that the DCA provides the power to detain, the grounds for detention and the system of review (counsel administrative). Various detailed issues were not addressed (eg, due process rights during the review process).
Open fire and active hostilities in the IAC routinely implicate the HRsL’s right to life. However, the right to life is not absolute and precludes arbitrary killing. What constitutes “arbitrary killing” will likely depend on the legality of the killing under the DCA (see Human Rights Committee, General Comment No. 36, by. 64).
Meanwhile, open fire and distinct situations of active hostilities in NIACs present distinct legal challenges. Suppose an incident occurred away from the scene of the fighting, but involved an individual who had participated in the fighting. This is likely to be analyzed using a law enforcement paradigm, taking into account the increased risk of a violent response.
There are challenges for the HRsL organs, but they mainly stem from the shortcomings of the DCA. For example, there is nothing in the DCA about conducting house searches or policing protests in conflict zones. This makes it difficult for the HRsL authorities to take the DCA into account. Second, there is uncertainty about the scope of direct participation in hostilities sufficient to lose the protection of civilians from lethal targeting, although it is at least included in treaty law. Targeting on the basis of membership in an organized armed group (exercising a continuous combat function) and detention in extraterritorial NIACs seem to depend on customary law. The refusal of many states to take a formal position on these issues makes it more difficult to establish customary law.
Evidence to date suggests that human rights bodies can appropriately address cases arising from armed conflict in which the state seeks to rely on DCA. It depends on the constructive advocacy of cases by States and third-party interventions defining the interpretation and application of the DCA in a responsible manner.
Françoise Hampson is Emeritus Professor of Law at the University of Essex.
Photo credit: Sergeant. Gabriel Rivera, US Army